Dariusz WRZESINSKI v Poland - 54399/07 [2012] ECHR 660 (27 March 2012)

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The European Court of Human Rights (Fourth Section), sitting on 27 March 2012 as a Committee composed of:

George Nicolaou, President,
Ledi Bianku,
Vincent A. De Gaetano, judges,
and Fatoş Aracı, Deputy Section Registrar,

The applicant, Mr Dariusz Wrzesiński, is a Polish national who was born in 1969 and lives in Bytom. The Polish Government (“the Government”) were represented by their Agent, Mr Jakub Wołąsiewicz of the Ministry of Foreign Affairs.

On 18 October 2006 the Zawiercie District Court, sitting as an assessor (asesor) and two lay judges (ławnicy), convicted the applicant of robbery and sentenced him to three years’ imprisonment. The applicant appealed. In his appeal he submitted that the courts had failed to establish the facts of the case properly and, as a result, he had been wrongly convicted.

On 9 March 2007 the Częstochowa Regional Court amended the first instance judgment in that it amended the legal qualification of the offence concerned.

By a letter of 26 April 2007 the court assigned advocate M.D. for the purposes of cassation proceedings. The court requested him to submit a cassation appeal on the applicant’s behalf or to inform the court of his refusal within 30 days from that letter’s service on the advocate.

In a letter to the court dated 7 May 2007 the lawyer informed it that he had found no grounds on which to prepare a cassation appeal.

A copy of the lawyer’s refusal was served on the applicant on 14 May 2007. It was accompanied by a letter by which the Częstochowa Regional Court informed the applicant that the thirty-day time-limit for lodging a cassation appeal would start to run anew on the date of the letter’s service on the applicant. It was open to him to seek services of a privately hired lawyer, if he chose to do so.

By the same letter the court informed the applicant that as he had already been granted legal aid, no grounds existed on which to grant him assistance by another legal aid lawyer.

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 relevant domestic law and practice concerning the procedure for lodging cassation appeals with the Supreme Court against judgments of the appellate courts are stated in the Court’s judgments in the cases of Kulikowski v. Poland, no. 18353/03, §§ 19-27, ECHR 2009-... (extracts) and Antonicelli v. Poland, no. 2815/05, §§ 14-22, 19 May 2009).

In particular, on 26 February 2002 the Supreme Court examined a situation where a legal-aid lawyer had refused to represent a convicted person for the purposes of cassation proceedings, finding that a cassation appeal would offer no prospects of success. It held that in such a situation the appellate court was obliged to instruct the defendant that the time-limit for lodging a cassation appeal started to run only on the date on which the defendant was served with the lawyer’s refusal and not on the earlier date when the judgment of the appellate court was served on the defendant himself. It stated that it was not open to doubt that a defendant faced with a legal-aid lawyer’s refusal had the right to take other measures to seek legal assistance necessary for effective lodging of a cassation appeal (III KZ 87/01). The Supreme Court reiterated its position in a decision of 6 May 2008 and in a number of similar decisions given in 2008. It observed that there had been certain discrepancies in the judicial practice as to the manner in which the time-limit in such situations was calculated, but the strand of the case-law originating the decision given in February 2002 was both dominant and correct, and also accepted by doctrine as providing to defendants adequate procedural guarantees of access to the Supreme Court within a reasonable time frame (II KZ 16/08).

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, in so far as relevant, provides as follows:

“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 6 October 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.”

In a letter of 9 November 2011 the applicant objected to the striking out of his case on the basis of the Government’s unilateral declaration and requested the Court to continue the examination of his application. He requested the Court to find a breach of Article 6 § 1 and to order a retrial of his case by the independent tribunal.

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 assessors (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 this part of 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 further complained under Article 6 of the Convention that he had been denied an effective access to the Supreme Court because the legal-aid lawyer had refused to prepare a cassation appeal in his case.

The Government argued that the Częstochowa Regional Court had informed the applicant about his legal-aid lawyer’s refusal and held that the time-limit for lodging a cassation appeal would start to run anew, starting on the date on which the refusal had been served on the applicant. They reiterated that the mere fact that a legal aid lawyer could refuse to represent a defendant in proceedings before the highest court could not be said to be, of itself, tantamount to a denial of legal assistance which would have been incompatible with the State’s obligations under Article 6 of the Convention. Furthermore, in case of a lawyer’s refusal to draft a cassation appeal, the State Parties were not obliged to provide assistance by successive legal-aid lawyers.

The Court first notes that the guarantees in paragraph 3 of Article 6 are specific aspects of the right to a fair trial in criminal proceedings as set forth in paragraph 1 of the same Article. Accordingly, the applicant’s complaint will be examined under these provisions taken together (see, among other authorities, Benham v. the United Kingdom, judgment of 10 June 1996, Reports of Judgments and Decisions 1996-III, p. 755, § 52, and Bobek v. Poland, no. 68761/01, § 55, 17 July 2007).

The Court has already had occasion to set out at length the relevant principles derived from its case-law in this area (Siałkowska v. Poland, no. 8932/05, §§ 99-107, 22 March 2007; Smyk v. Poland, no. 8958/04, §§ 54-59, 28 July 2009; Antonicelli v. Poland, no. 2815/05, § 30-37, 19 May 2009; Jan Zawadzki v. Poland, no. 648/02, § 15 16, 6 July 2010). It adopts those principles for the purposes of the instant case.

In the present case the applicant was served with the lawyer’s refusal on 14 May 2007. The Court notes in this connection that the procedural framework governing the making available of legal aid for a cassation appeal in criminal cases is within the control of the appellate courts. When notified of a legal-aid lawyer’s refusal to prepare a cassation appeal, it is entirely appropriate and consistent with fairness requirements, that an appeal court indicate to an appellant what further procedural options are available to him or her (see Kulikowski v. Poland, cited above, § 70; Antonicelli v. Poland, cited above, § 45).

In the present case, the court’s letter accompanying that refusal contained detailed information concerning his procedural rights. In particular, the Court of Appeal informed the applicant, in compliance with the case-law of the Supreme Court referred to above, that on the date of the service of that refusal the thirty-day time-limit for lodging a cassation appeal started to run anew. Hence, the Court is of the view that the court took appropriate steps to inform the applicant of his procedural situation.

The Court is aware that at the same time the court informed the applicant that after the first legal-aid lawyer’s refusal to prepare a cassation appeal a second legal-aid lawyer would not be assigned to the case. However, the Court has already held that Article 6 of the Convention does not confer on the State an obligation to ensure assistance by successive legal-aid lawyers for the purposes of pursuing legal remedies which have already been found not to offer reasonable prospects of success. In the present case the first lawyer appointed under the legal-aid scheme found no legal grounds on which to prepare a cassation appeal. In the absence of indications of negligence or arbitrariness on the lawyer’s part in discharging her duties, the State can be said to have complied with its obligations to provide effective legal aid to the applicant in connection with the cassation proceedings (Kulikowski v. Poland, cited above, § 68; Słowik v. Poland, no. 31477/05, § 23, 12 April 2011).

The foregoing considerations are sufficient to enable the Court to conclude that the applicant was not put in a position in which he was left without adequate legal representation such as to impair his effective access to a court in breach of the Convention.

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.

The applicant further complained, relying on Article 6 of the Convention, that the proceedings had been unfair in that the courts had wrongly assessed evidence, erred in establishing the facts of the case and incorrectly applied the domestic law.

However, the Court reiterates that, according to Article 19 of the Convention, its duty is to ensure the observance of the engagements undertaken by the Contracting Parties to the Convention. In particular, it is not its function to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention. Moreover, 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 it should be assessed, which are therefore primarily matters for regulation by national law and the national courts (see García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999-I, with further references).

In the present case, even assuming that the requirement of exhaustion of domestic remedies was satisfied, the Court notes that the applicant did not allege any particular failure to respect his right to a fair hearing on the part of the relevant courts. Indeed, his complaints are limited to a challenge to the result of the proceedings. Assessing the circumstances of the case as a whole, the Court finds no indication that the impugned proceedings were conducted unfairly.

Lastly, the applicant complained under Article 3 that his detention amounted to inhuman treatment, and under Article 6 § 2 that his detention violated the principle of the presumption of innocence.

Having examined all the material in its possession and regardless of other possible grounds of inadmissibility, the Court finds nothing in the case file which might disclose any appearance of a violation of the provisions relied on.

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.

Takes note of the terms of the respondent Government’s declaration in respect of the complaint concerning the lack of the assessor under Article 6 § 1 of the Convention, and of the modalities for ensuring compliance with the undertakings referred to therein;

Decides 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;

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You are here: BAILII >> Databases >> European Court of Human Rights >> Dariusz WRZESINSKI v Poland - 54399/07 [2012] ECHR 660 (27 March 2012) URL: http://www.bailii.org/eu/cases/ECHR/2012/660.html Cite as: [2012] ECHR 660