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FOURTH
SECTION
CASE OF
POHOSKA v. POLAND
(Application
no. 33530/06)
JUDGMENT
STRASBOURG
10 January
2012
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial revision.
In the case of Pohoska v. Poland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
David Thór Björgvinsson,
President,
Lech Garlicki,
George Nicolaou,
Ledi
Bianku,
Zdravka Kalaydjieva,
Nebojša
Vučinić,
Vincent A. De Gaetano, judges,
and
Fatoş Aracı, Deputy
Section Registrar,
Having
deliberated in private on 6 December 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 33530/06)
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 a
Polish national, Ms Danuta Pohoska (“the applicant”), on
25 July 2006.
2. The
applicant, who had been granted legal aid, was represented by Mr P.
Rybiński, a lawyer practising in Sopot. The
Polish Government (“the Government”) were represented by
their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign
Affairs.
3. The
applicant alleged that a criminal case against her had not been
examined by an independent and impartial court and that she had been
denied access to the Supreme Administrative Court.
- On
30 August 2010 the President of
the Fourth Section decided to give notice of the application
to the Government.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1951 and lives in Elbląg.
A. Criminal proceedings against the applicant
6. In
a criminal case in which the applicant was accused of causing minor
bodily harm to a certain D.Ł., in the context of a long running
neighbourhood dispute between them, the applicant requested that
judges of the Elbląg Regional Court be disqualified from dealing
with her case. She indicated that D.Ł. was the brother of Judge
M.K.P., a supervising judge at that court.
7. By
a decision of 17 May 2000 the Gdańsk Court of Appeal allowed her
request and transferred the case to the Włocławek District
Court. It was of the view that those judges of the Elbląg
Regional Court who had declared that they knew the victim of the
alleged offence personally could not sit in the case as it would cast
doubt on their impartiality. Similarly, the judges of that court who
had not made such a declaration should be disqualified, as the
existence of a link between the victim of the alleged offence and the
supervising judge justified the view that their impartiality could
also be open to doubt. The court referred to Article 6 of the
Convention, guaranteeing the right to a fair hearing by an impartial
court, and to Article 45 of the Constitution.
8. In
another criminal case against the applicant, concerning similar
charges where D.Ł. was also a victim of the alleged offence, on
4 April 2001 the Gdańsk Court of Appeal gave a similar decision,
disqualifying the judges of both the Elbląg District Court and
Regional Court on similar grounds. The case was, likewise,
transferred to the Włocławek District Court.
9. On
28 September 2004, in another case in which D.Ł. was the accused
and the applicant the victim of the alleged offence, the Gdańsk
Court of Appeal held that twenty-seven of the judges of the Elbląg
Regional Court (including Judges I.L. and N.B.; see paragraphs 19
and 19 below) should be disqualified as there were doubts as to
their impartiality. The applicant had been arrested following a
complaint submitted to the prosecuting authorities by D.Ł.
Moreover, the twenty-seven disqualified judges had declared that
circumstances obtained which could have given rise to doubts as to
their impartiality. Four other judges were not disqualified as they
had declared that no such doubts arose in respect of them.
10. On
23 November 2004, in a case in which the applicant sought
compensation for unjustified arrest and detention in connection with
a criminal case in which she had ultimately been acquitted, the
Gdańsk Court of Appeal held that all of the judges of the Elbląg
Regional Court should be disqualified. It was of the view that there
were doubts as to their impartiality. This was so
because the applicant had been arrested and subsequently detained in
a case in which D.Ł. was the victim of the alleged offences.
Certain of the judges had declared that they knew D.Ł.
personally. This set of circumstances justified the transfer of the
case to the Włocławek Regional Court.
- Subsequently,
D.Ł. requested that criminal proceedings be instituted against
the applicant on charges of giving false testimony against him in
another set of proceedings.
- By
a decision of 7 January 2005 the Elbląg District Court submitted
a request to the Supreme Court that the case be transferred for
examination by another court. It referred to the applicant’s
doubts as to the impartiality of the judges of the district court
arising in connection with D.Ł. having a family link to the
superior of those judges. It further referred to the previous cases
in which the applicant had been involved. It was of the view that the
reputation of the judiciary and the confidence which the courts
should inspire in the public, in particular as to their impartiality,
warranted the case being examined by another court.
- On
18 March 2005 the Supreme Court dismissed the request. It held that
the fact that the victim of the alleged offence was the brother of
one of the judges of “a regional court (apparently in Elbląg)”
(“sędziego Sądu Okręgowego (prawdopodobnie w
Elblągu)”), even taken together with the fact that the
applicant had sought to have all the judges of the Elbląg
District Court and Elbląg Regional Court disqualified, was
insufficient to give rise to doubts as to the impartiality of these
judges. It was not in the interests of the administration of justice
to abuse the possibility for cases to be transferred to another
court.
- Subsequently,
on 26 April 2005 the Elblag District Court, in a single-judge panel
composed of Assessor E.M. (an assessor is a junior judge), dismissed
the applicant’s request that K.S., another assessor assigned to
examine her case, be disqualified. It held that no circumstances
obtained that would show that K.S. might lack impartiality. No
reference was made either to the specific facts of the case, to the
relationship between D.Ł. and the supervising judge or to the
decisions of the Gdańsk Court of Appeal summarised above.
- On
25 August 2005 the Elbląg District Court, presided over by
Assessor K.S., found the applicant guilty of giving false evidence
against D.Ł. and A.Ch., in that she had falsely informed the
prosecuting authorities that they had caused damage to her orchard.
The court sentenced her to one year’s imprisonment, suspending
that sentence for a probationary period of one year, during which the
applicant’s conduct would be supervised by a court officer.
- On
8 October 2005 the applicant appealed. She submitted, inter alia,
that the court had lacked impartiality because D.Ł. was the
brother of the supervising judge at the Elbląg Regional Court.
The existence of family links between the victim and the supervising
judge on the one hand, and the hierarchical professional link between
the latter and all the other judges of the Elbląg courts on the
other hand, had compromised the impartiality of the court. She
further referred to the fact that in one of the orders to the court’s
secretariat by which Assessor K.S. organised the procedure she had
referred to the applicant as “the convicted person”
(skazana). This demonstrated that even before the judgment had
been given, that assessor had already prejudged the outcome of the
proceedings. She further submitted that the court had wrongly
established the facts and had committed errors in the legal
assessment of the case.
- The
prosecution also appealed against the judgment, arguing that the
court had erred in the application of the substantive provisions of
criminal law.
- Subsequently,
the applicant requested that Judges N.B., I.L. and E.M. of the Elbląg
Regional Court not be assigned to the bench which was to examine her
appeal. She reiterated that the fact that D.Ł. was the brother
of the supervising judge was capable of casting doubt on the
impartiality of the judges of that court.
On 20
January 2006 the Elbląg Regional Court dismissed her request. It
noted that the applicant had already unsuccessfully requested in that
case that the judges of the Elbląg courts withdraw from the
case, relying on the same circumstances. Hence, there were no grounds
on which to allow her request in respect of the judges of the
Regional Court. It further noted that the judges assigned to examine
the applicant’s appeal had declared that they did not know any
of the parties to the case personally.
- By
a judgment of 27 January 2006, served on the applicant on 15 March
2006, the Elbląg Court of Appeal, composed of Judges I.L., N.B.
and E.M., dismissed the applicant’s appeal. It was of the view
that the arguments concerning the assessment of the evidence by the
first-instance court were ill-founded. As to the applicant’s
argument based on the alleged lack of impartiality of the District
Court, the court noted that on 26 April 2005 the applicant’s
request that assessor E.M. should step down had been dismissed. The
circumstances of the case had not indicated that there could have
been any bias on the part of the judge who had examined the case and
the applicant’s arguments in this respect were unconvincing.
- The
court allowed the prosecution’s appeal in part and quashed the
part of the judgment imposing a supervision order on the applicant.
B. Administrative proceedings
- In
1994 the Elbląg District Court found the applicant’s
neighbours guilty of breaching planning and building regulations by
building a house over the garage on their land, contrary to
applicable law. In the ensuing sets of proceedings, the applicant
sought to have the illegal construction demolished.
- On
15 September 2005 the applicant complained to the Olsztyn Regional
Administrative Court about the authorities’ failure to take
steps in order to have the construction comply with planning and
building regulations.
- On
12 April 2006 the Olsztyn Regional Administrative Court gave a
judgment. It found that the applicant’s complaint was justified
and ordered the District Construction Supervision to give a decision
in the applicant’s case within one month. On 22 May 2006 the
Regional Administrative Court’s judgment was served on the
applicant with its written reasons. On that date, the thirty-day
time-limit for lodging a cassation appeal against the judgment
started to run.
- By
letter dated 20 June 2006, posted on 21 June 2006, the applicant
requested the court to grant her legal aid. By a decision of 12 July
2006 legal aid was granted. By letter of 23 August 2006 the local
District Chamber of Legal Advisers (Okręgowa Izba Radców
Prawnych) informed the applicant that, upon the court’s
request dated 17 August 2006 the case had been assigned to J.S.
The court informed the applicant thereof by letter of 25 August
2006. On 31 August 2006 the applicant gave a power of attorney to
J.S. On 4 September 2006 certain documents from the case file
were served on J.S., following his request dated 1 September
2006. By a legal opinion dated 3 October 2006 J.S. informed
the court and the applicant that there were no legal grounds on which
he could prepare a cassation appeal and that, in any event, the
applicant had no legal interest in lodging it because the judgment of
the Regional Administrative Court had been in her favour.
II. RELEVANT DOMESTIC LAW
- Article
41 of the Code of Criminal Procedure provides as follows:
“A judge shall be disqualified if such
circumstances obtain as could give rise to justified doubts about his
or her impartiality in a given case”.
- The
tasks entrusted to the supervising judges are governed by the
Ordinance on Supervision Over the Court’s Administrative
Functions (rozporządzenie Ministra Sprawiedliwości w
sprawie trybu sprawowania nadzoru nad działalnością
administracyjną sądów), issued by the Minister
of Justice. Its section 2 provides that the ministerial supervision
shall be carried out through, inter alia, supervision audits
(wizytacje and lustracje). Under sections 4 and 5,
presidents of appellate and regional courts are charged with the
administrative supervision of courts within areas of their
territorial jurisdiction. Section 9 provides that presidents of
appellate and regional courts shall appoint supervising judges for
the purposes of the administrative supervision from among
particularly knowledgeable judges. Under section 12, the supervising
judges shall carry out their tasks by conducting supervision audits
in courts; by attending hearings and submitting their observations to
judges and administrative staff concerned; by participating in
deliberations and judicial trainings, by suggesting that disciplinary
proceedings be instituted in respect of judges and by examining
whether complaints about the administrative aspects of judicial work
are well-founded. Pursuant to section 13 § 1 of the
Ordinance, a president of a regional court may charge the supervising
judges with the preparation of assessments of whether an assessor
should be promoted to a judicial post.
- Article
540 § 3 of the Code of Criminal Procedure provides for the
possibility of reopening proceedings following a judgment of the
European Court of Human Rights. It reads as follows:
“The proceedings shall be reopened for the benefit
of the accused when such a need results from a decision
(rozstrzygnięcie) of an international body acting on the
basis of an international agreement ratified by the Republic of
Poland.”
- The relevant domestic law and practice concerning the
position of assessors in the judicial system is extensively
summarised in the Court’s judgment in the case of Henryk
Urban and Ryszard Urban v. Poland, no. 23614/08,
§§ 17-24, 30 November 2010.
- The relevant domestic law and practice concerning the
procedure for lodging cassation appeals with the Supreme
Administrative Court against judgments of the Regional Administrative
Courts are stated in the Court’s judgment in the case of
Subicka v. Poland, no. 29342/06, §§ 12 21,
14 September 2010.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION AS REGARDS LACK OF INDEPENDENCE AND IMPARTIALITY
- The
applicant complained that the court which had
heard the criminal case against her had not been independent and
impartial. She relied on Article 6 § 1 of the Convention, which
reads, 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.”
A. Admissibility
- The
Court notes that this complaint is not manifestly ill founded
within the meaning of Article 35 § 3 of the Convention. It
further notes that it is not inadmissible on any other grounds. It
must therefore be declared admissible.
B. Merits
- The
applicant submitted that the criminal case
against her in which the second-instance judgment had been given by
the Elbląg Regional Court on 27 January 2006 had not been
examined by an impartial court.
- The
Government submitted that they would abstain from making any
submissions on the merits of that complaint.
1. General principles
- The
Court recalls that in determining whether a body can be considered as
“independent” – notably of the executive and of the
parties to the case – regard must be had, inter alia, to
the manner of appointment of its members and the duration of their
term of office, the existence of guarantees against outside pressures
and the question whether the body presents an appearance of
independence (see Campbell and Fell v. the United Kingdom,
28 June 1984, § 78, Series A no. 80; Findlay
v. the United Kingdom, 25 February 1997, § 73,
Reports of Judgments and Decisions 1997 I; Incal
v. Turkey, 9 June 1998, § 65, Reports
1998 IV; Brudnicka and Others v. Poland,
no. 54723/00, § 38, ECHR 2005 II; and Luka
v. Romania, no. 34197/02, § 37, 21 July
2009). Furthermore, the irremovability of judges by the executive
during their term of office must in general be considered as a
corollary of their independence and thus included in the guarantees
of Article 6 § 1 (see Campbell and Fell, cited
above, § 80). The
Court further
recalls
that
the requisite guarantees of independence apply not only to a
“tribunal” within the meaning of Article 6 § 1 of
the Convention, but also extend to “the judge or other officer
authorised by law to exercise judicial power” referred
to in Article 5 § 3 of the Convention (see McKay
v. the United Kingdom [GC],
no. 543/03, § 35, ECHR 2006 X).
- The Court further reiterates that it is of fundamental
importance in a democratic society that the courts inspire confidence
in the public. To that end, Article 6 requires a tribunal falling
within its scope to be impartial. Impartiality normally denotes the
absence of prejudice or bias and its existence or otherwise can be
tested in various ways. The Court has thus distinguished between a
subjective approach – that is, endeavouring to ascertain the
personal conviction or interest of a given judge in a particular case
– and an objective approach – that is, determining
whether he or she offered sufficient guarantees to exclude any
legitimate doubt in this respect (see Piersack v. Belgium,
1 October 1982, § 30, Series A no. 53, and
Grieves v. the United Kingdom [GC], no. 57067/00,
§ 69, ECHR 2003 XII (extracts)).
- In
applying the subjective test, the Court has consistently held that
the personal impartiality of a judge must be presumed until there is
proof to the contrary (see Hauschildt v. Denmark, 24 May
1989, § 47, Series A no. 154). As regards the type of
proof required, the Court has, for example, sought to ascertain
whether a judge has displayed hostility or ill will or has arranged
to have a case assigned to himself for personal reasons
(see De Cubber
v. Belgium, 26 October 1984, § 25, Series A
no. 86). The principle that a tribunal shall be presumed to be
free of personal prejudice or partiality is long-established in the
case-law of the Court (see, for example, Le Compte,
Van Leuven and De Meyere v. Belgium, 23 June 1981,
§ 58, Series A no. 43).
- Although
in some cases it may be difficult to procure evidence with which to
rebut the presumption, it must be remembered that the requirement of
objective impartiality provides a further important guarantee (see
Pullar v. the United Kingdom, 10 June 1996, § 32,
Reports of Judgments and Decisions 1996 III). In other
words, the Court has recognised the difficulty of establishing a
breach of Article 6 on account of subjective partiality and for
this reason has, in the vast majority of cases raising impartiality
issues, focused on the objective test. However, there is no
watertight division between the two notions, since the conduct of a
judge may not only prompt objectively held misgivings as to
impartiality from the point of view of the external observer (the
objective test) but may also go to the issue of his or her personal
conviction (the subjective test) (see Kyprianou v. Cyprus,
[GC], no. 73797/01, § 119, ECHR 2005 XIII).
- As
to the second test, when applied to a body sitting as a bench, it
means determining whether, quite apart from the personal conduct of
any of the members of that body, there are ascertainable facts which
may raise doubts as to its impartiality. In this respect, even
appearances may be of some importance (see Castillo Algar v.
Spain, 28 October 1998, § 45, Reports
1998 VIII; Morel v. France, no. 34130/96,
§ 42, ECHR 2000 VI and Kyprianou v. Cyprus
[GC], cited above, § 118, ECHR 2005 XIII). When
it is being decided whether in a given case there is a legitimate
reason to fear that a particular body lacks impartiality, the
standpoint of those claiming that it is not impartial is important
but not decisive. What is decisive is whether the fear can be held to
be objectively justified (see Ferrantelli and Santangelo v. Italy,
7 August 1996, § 58, Reports 1996 III, and
Wettstein v. Switzerland, no. 33958/96, § 44,
ECHR 2000 XII).
2. Application of the above principles to the present case
- Turning
to the circumstances of the present case, the Court observes that the
applicant was involved in a long-running dispute with one of her
neighbours, D.Ł. Against the background of that dispute, a
number of administrative and criminal cases were conducted concerning
various disagreements and incidents between the applicant and that
neighbour.
- The
Court first observes that the applicant did not adduce any evidence
to substantiate personal bias on the part of the judges of the Elbląg
Regional Court dealing with the criminal case against her. It remains
to be ascertained whether the appearance of impartiality was observed
under the objective test.
- In
this connection, the Court notes that the applicant’s
neighbour, and opponent in a number of the cases, happened to be the
brother of a supervising judge at the Elbląg Regional Court. In
the Polish judicial system, such a judge is responsible for
supervision of the quality of decisions produced by judges of the
Regional Court and the district courts and of the manner in which
they handle their case management duties. The supervisor’s
functions can have a bearing on a judge’s professional career
and advancement. The Gdańsk Court of Appeal, having regard to
the relationship between D.Ł. and the supervising judge, on a
number of occasions, held that the judges of the Elbląg courts
should withdraw from the applicant’s cases.
- The
Court is of the opinion that it cannot be excluded that a situation
where domestic courts find it appropriate that judges should withdraw
from examining a case, but subsequently the same judges are called
upon to examine another case involving the same parties, is capable
of raising issues under Article 6 of the Convention. However, the
Court observes that it is not necessary, in the circumstances of the
present case, to examine in detail this particular aspect of the
case, for the following reasons.
- The
Court notes that in the applicant’s case Assessor E.M.
dismissed the applicant’s request that K.S., another assessor
assigned to examine her case, be disqualified. No reference was made
in this decision either to the relationship between D.Ł. and the
supervising judge or to the earlier decisions of the Gdańsk
Court of Appeal. In this connection, the Court observes that at the
material time the supervising judges were responsible for preparing
assessments of assessors’ suitability for judicial functions
(see paragraph 26 above).
- Furthermore,
the Court notes that at the relevant time assessors were appointed by
the Minister of Justice provided that they met a number of specific
conditions stipulated in the Law of 27 July 2001 (as amended) on the
Organisation of Courts (Prawo o ustroju sądów
powszechnych; hereinafter “the 2001 Act”) 2001 Act
(section 134 § 1). The Minister could confer on an assessor the
authority to exercise judicial power in a district court, subject to
approval by the board of judges of a regional court and for a period
not exceeding four years (section 135 § 1). Under
section 134 § 5 of the 2001 Act the Minister could
remove an assessor, including those who were vested with judicial
powers.
- The
Court observes that the Polish Constitutional Court considered the
status of assessors in its leading judgment of 24 October 2007
(see Henryk Urban and Ryszard Urban v. Poland, cited
above, §§ 19 24). 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. As a result, the Constitutional
Court set aside the regulatory framework governing the institution of
assessors as laid down in the 2001 Act.
- The
Court has already held, having had regard to the findings of the
Constitutional Court, that a court composed of assessors was not
independent within the meaning of Article 6 § 1 of the
Convention, the reason being that an assessor could have been removed
by the Minister of Justice at any time during their term of office
and that there were no adequate guarantees protecting them against
the arbitrary exercise of that power by the Minister (see, Henryk
Urban and Ryszard Urban v. Poland, cited above, §§ 51 53).
- The
Court thus concludes, having regard to the circumstances of the case
seen as a whole, that there has been a violation of Article 6
§ 1 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF
THE CONVENTION AS REGARDS ACCESS TO COURT
- The
applicant complained under Article 6 § 1 of the
Convention that she had been denied access to the Supreme
Administrative Court.
Article 6
§ 1 reads, in so far as relevant:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a fair ... hearing ... by
[a] ... tribunal...”
A. The parties’ arguments
- The
applicant submitted that she had been denied access to the Supreme
Administrative Court.
- The
Government referred to a resolution of the Supreme Court given in
September 2000. That court had held that a lawyer assigned to a case
under the legal aid scheme was entitled to refuse to lodge a
cassation appeal in civil proceedings, if he or she was of the view
that this remedy offered no reasonable prospects of success. The
Government stressed that the notion of legal aid was not to be
understood as either providing legal representation in all
proceedings or assigning successive legal-aid lawyers to a case. The
lawyers’ tasks could not be perceived as following their
clients’ instructions and wishes uncritically and lodging
remedies against their better judgment. In the present case, the
applicant had been granted legal aid. The legal aid lawyer had
been diligent in preparing a legal opinion. Moreover, the applicant
had failed to act diligently. She had been served with the judgment
of the Regional Administrative Court on 22 May 2006. It had been on
that date that the thirty-day time limit had started to run.
However, she had submitted her request for legal aid only one day
before the expiry of that time limit.
B. The Court’s assessment
- The
Court has already had occasion to set out at length the relevant
principles derived from its case-law in this area (see Siałkowska
v. Poland, no. 8932/05, §§ 99-107, 22 March
2007; Smyk v. Poland, no. 8958/04, §§ 54 59,
28 July 2009; and Subicka v. Poland, no. 29342/06,
§ 40, 14 September 2010). It adopts those principles
for the purposes of the instant case.
- In
the present case, the Court notes that the judgment of the Regional
Administrative Court was in the applicant’s favour as that
court found that the applicant’s complaint was justified.
However, even assuming that the applicant could claim to be a victim
of a breach of the Convention, the Court observes that the
second-instance judgment, together with its written reasons, was
served on the applicant on 22 May 2006. It was on that date that the
thirty day time-limit for lodging the cassation appeal started
to run. However, the Court observes that the applicant
submitted her request for legal aid on 21 June 2006, only one day
before the expiry of that time-limit. It has not been shown or even
argued that this delay was justified by any special circumstances for
which the applicant could not be held responsible, or that she could
not have been aware of the time limit within which a cassation
appeal had to be submitted to the highest court. The court, having
received her request, examined it speedily and granted her request on
12 July 2006.
- Having
regard to the delay with which the applicant availed herself of her
procedural right, the Court is of the view that she failed to display
the diligence which should normally be expected from a party to civil
proceedings (see Pretto and Others v. Italy, 8 December
1983, § 33, Series A no. 71; Bąkowska
v. Poland, no. 33539/02, §§ 53-54,
12 January 2010; and Staniszewski v. Poland,
no. 28157/08, 5 October 2010, §§ 32 33).
- Therefore,
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
that they do not disclose any appearance of a violation of the rights
and freedoms set out in the Convention or its Protocols. It follows
that this complaint is manifestly ill founded and must be
rejected in accordance with Article 35 §§ 3 (a)
and 4 of the Convention.
III. ALLEGED VIOLATION OF ARTICLE 6 § 1
OF THE CONVENTION AS REGARDS UNFAIRNESS
- The
applicant complained that the courts had wrongly assessed the
evidence and, as a result, had failed to establish the facts of the
case correctly and had given erroneous judgments.
- The
Court reiterates that, while Article 6 of the Convention
guarantees the right to a fair hearing, it does not lay down any
rules on the admissibility of evidence or the way in which it should
be assessed, which are therefore primarily matters for regulation by
national law and the national courts (see Schenk v.
Switzerland, 12 July 1988, §§ 45-46, Series A
no. 140, and García Ruiz v. Spain [GC],
no. 30544/96, ECHR 1999-I, § 28).
- It
follows that this part of the application is manifestly ill founded
and must be rejected in accordance with Article 35 §§ 3
and 4 of the Convention.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed 60,000 zlotys (PLN) in respect
of pecuniary and non pecuniary damage arising out of the
circumstances of the criminal case.
- The
Government submitted that the applicant’s claim was excessive
and that there was no causal link between the circumstances of the
case and the damages claimed.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim. On
the other hand, the Court considers that the applicant must have
suffered some non-pecuniary damage in connection with the
circumstances of the criminal case against her. It awards her the sum
of 1,000 euros (EUR).
- The Court further reiterates that when an applicant
has been convicted despite a potential infringement of his or her
rights guaranteed by Article 6 of the Convention, he should, as far
as possible, be put in the position in which he would have been had
the requirements of that provision not been disregarded. The most
appropriate form of redress would, in principle, be
trial de
novo
or the reopening of the proceedings, if requested (see, among
many other authorities, Öcalan v. Turkey [GC],
no. 46221/99, § 210 in fine, ECHR 2005-IV,
Popov v. Russia, no. 26853/04, § 264, 13 July
2006; Vladimir Romanov v. Russia, no. 41461/02,
§ 118, 24 July 2008). In the present case
the Court takes note of the particular link of dependence which the
law established between the assessors and supervising judges. Against
that background, the Court is of the view that in the circumstances
of the case the most suitable way to redress the breach of the
applicant’s rights would be to re-open the proceedings in the
case. The Court notes, in this connection, that Article 540 § 3
of the Polish Code of Criminal Procedure provides that criminal
proceedings shall be reopened if the Court finds a violation of the
Convention.
B. Costs and expenses
- The
applicant did not make any claim in respect of
costs and expenses.
C. Default interest
- The
Court considers it appropriate that the default interest rate should
be based on the marginal lending rate of the European Central Bank,
to which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint
concerning the alleged lack of impartiality on the part of the
criminal courts admissible and the remainder of the application
inadmissible;
- Holds that there has been a
violation of Article 6 § 1 of the Convention as regards lack of
impartiality on the part of the courts which examined her criminal
case;
- Holds
(a) that
the respondent State is to pay the applicant,
within three months from the date on which the judgment
becomes final in accordance with Article 44 § 2
of the Convention, EUR 1,000 (one thousand euros) plus
any tax that may be chargeable thereon, in respect of non-pecuniary
damage, to be converted into Polish zlotys at the rate applicable at
the date of settlement;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of
the applicant’s claim for just
satisfaction.
Done in English, and notified in writing on 10 January 2012, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı David Thór Björgvinsson Deputy
Registrar President
