Przedsiebiorstwo Komunikacyjno-Spedycyjne TYCHY sp. zo.o. v Poland

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Application no. 18342/08
by Przedsiębiorstwo Komunikacyjno-Spedycyjne TYCHY sp. z o.o.
against Poland

The European Court of Human Rights (Fourth Section), sitting on 4 January 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,

Having regard to the declarations submitted by the respondent Government on 17 October 2011 requesting the Court to strike the applications out of the list of cases and the applicants’ replies to those declarations,

Przedsiębiorstwo Komunikacyjno-Spedycyjne TYCHY sp. z o.o., a limited liability company registered in Poland. It was represented before the Court by Mr A. Chrzanowski, a lawyer practising in Tychy.

Mr Radosław Gliwiński, a Polish national who was born in 1983 and lives in Dąbrowa Górnicza. He was represented before the Court by Mr Z. Żurawski, a lawyer practising in Dąbrowa Górnicza.

Mr Bogdan Banaś, a Polish national who was born in 1965 and lives in Nowa Sól. He was represented before the Court by Mr M. Sienkiewicz, a lawyer practising in Nowa Sól.

Mr Jerzy Popławski, a Polish national who was born in 1954 and lives in Stanisławów. He was represented before the Court by Mr T. Kulig, a lawyer practising in Warsaw.

The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs.

On 26 September 2006 the applicant company sued the Global Logistics Projects Polska company in the Tychy District Court, seeking payment for its shipping services.

On 12 November 2007 the Tychy District Court, composed of an assessor, gave judgment. It allowed only a minor part of the applicant company’s claim.

The applicant company appealed. It contested, inter alia, the fact that its case had been decided by an assessor and referred in this respect to the Constitutional Court’s judgment of 24 October 2007.

On 6 May 2008 the Katowice Regional Court in essence upheld the first instance judgment. It considered the objections as to the composition of the first-instance court unfounded since the Constitutional Court had allowed adjudication by assessors during the eighteen months following the promulgation of its judgment. No further appeal lay against the judgment.

On 12 December 2002 the applicant was arrested and charged with incitement to robbery.

On 4 August 2004 the Katowice Regional Court convicted him of incitement to theft and sentenced him to sixteen months’ imprisonment. The applicant appealed.

On 3 March 2005 the Katowice Court of Appeal quashed the first instance judgment and remitted the case.

On 16 May 2005 the Katowice Regional Court transmitted the case to the Dąbrowa Górnicza District Court which had jurisdiction to hear it.

On 6 August 2007 the Dąbrowa Górnicza District Court, composed of an assessor and two lay judges, convicted the applicant of incitement to robbery and sentenced him to two years’ imprisonment suspended on probation. It also imposed a fine on the applicant.

On 7 March 2008 the Katowice Regional Court upheld the judgment of the District Court.

The Solbud company sued the applicant in the Nowa Sól District Court, seeking payment for fraudulent use of its construction material. The claim was considered in a summary procedure.

On 8 June 2006 the Nowa Sól District Court allowed the action and issued a payment order against the applicant. The applicant objected to the ruling. Subsequently, the case was examined in the ordinary procedure.

On 21 November 2007 the Nowa Sól District Court, composed of an assessor, partly granted the claimant company’s claim. Both parties appealed.

On 25 April 2008 the Zielona Góra Regional Court, composed of two regional court judges and one seconded district court judge, dismissed the appeals. No further appeal lay against the judgment.

On 13 October 2006 the applicant company sued D.J. in the Tychy District Court, seeking compensation for damage related to belated payment for its shipping services.

On 24 July 2007 the Tychy District Court, composed of an assessor, dismissed the applicant company’s claim. The applicant company appealed. On 25 October 2007 it supplemented its appeal, arguing that the first instance judgment had not been given by a judge. It referred to the Constitutional Court’s judgment of 24 October 2007.

On 27 November 2007 the Katowice Regional Court dismissed the appeal. 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 assessors of judicial powers. No further appeal lay against the judgment.

On an unspecified date the prosecution filed a bill of indictment against the applicant with the Wołomin District Court. He was charged with four counts of abuse of official authority and appropriation.

On 13 August 2007 the Wołomin District Court, composed of an assessor and two lay judges, gave judgment. It convicted the applicant on one count of abuse of official authority and sentenced him to ten months’ imprisonment suspended on probation and a fine. In respect of the remaining charges, the trial court either acquitted the applicant or discontinued the proceedings. The applicant appealed.

On 19 September 2008 the Warsaw-Praga Regional Court upheld the first-instance judgment.

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)).

Given their similar legal background, the Court decides that the five applications should be joined pursuant to Rule 42 § 1 of the Rules of Court.

The applicants all complained under Article 6 § 1 of the Convention about the lack of independence of the assessors who had examined their cases at the first-instance level. They all relied on Article 6 § 1 of the Convention which, in so far as relevant, provides as follows:

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

By letters dated 12 and 17 October 2011 the Government informed the Court that they proposed to make unilateral declarations with a view to resolving the issue raised by the applications. They further requested the Court to strike out the applications in accordance with Article 37 of the Convention.

The terms of the declarations, which were identically worded in all cases, provided as follows:

“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 a 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.”

Przedsiębiorstwo Komunikacyjno-Spedycyjne TYCHY sp. z o.o. submitted no comments on the Government’s unilateral declaration filed in respect of its application no. 18342/08.

In a letter of 15 November 2011 Mr Gliwiński requested the Court to reject the Government’s unilateral declaration and argued that only a judgment on the merits would provide him with adequate redress. He noted that at the earlier stages of the proceedings the Government had not expressed any interest in a friendly settlement of the case and had subsequently submitted a unilateral declaration with a view to avoiding the examination of the case by the Court. The applicant qualified the Government’s conduct as an abuse of their position, which was aimed at avoiding the negative consequences of a judgment finding a violation. He also argued that the acceptance of the Government’s unilateral declaration would deprive him of a possibility to recover legal costs related to his representation before the Court. It would be acceptable to strike the case out on the basis of a friendly settlement reached between the parties which would include reimbursement of the applicant’s legal costs.

In a letter of 8 November 2011 Mr Banaś objected to the striking out of his case on the basis of the Government’s unilateral declaration. He requested the Court to award him just satisfaction and reimburse his costs.

In a letter of 9 November 2011 Przedsiębiorstwo Komunikacyjno Spedycyjne TYCHY sp. z o.o. requested the Court to dismiss the Government’s unilateral declaration and to adopt a judgment in respect of its application no. 10005/09. The applicant company objected to the fact that there was no possibility to reopen the proceedings in its case following the Constitutional Court’s judgment of 24 October 2007.

In a letter of 15 November 2011 Mr Popławski requested the Court to continue the examination of his case. He acknowledged that the institution of assessors had been abolished but there was no possibility to obtain redress in cases, such as his, in which assessors had adjudicated. The applicant argued that the State had an obligation to correct the breach and its effects; however Polish law did not provide for a possibility to seek any compensation in his case.

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 cases 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 or involving the applicants and therefore the issue in the present cases is limited to the institutional deficiency regarding the status of assessors. In the circumstances of the present cases the Court accepts that the Government are not required to offer any compensation to the applicants in light of the Henryk Urban and Ryszard Urban v. Poland judgment.

The Court has carefully examined the terms of the Government’s declarations. It observes that their declarations contain a clear acknowledgment of a breach of Article 6 § 1 of the Convention and refer 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 declarations as well as the absence of any factors which could distinguish the present cases 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 applications in so far as they concern complaints 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 complaints at issue (Article 37 § 1 in fine).

Accordingly, it is appropriate to strike the applications out of the list in so far as they concern complaints related to the lack of independence of assessors.

Mr Gliwiński complained under Article 6 § 1 of the Convention about the assessment of evidence. He also complained under Article 13 that there had been no possibility to reopen the proceedings in his case following the Constitutional Court’s judgment of 24 October 2007. Mr Banaś complained under Article 6 § 1 that the proceedings before the District Court had been unfair and alleged a breach of Article 6 § 2. He further complained that the assessor had not been impartial since the head of the civil section of the Nowa Sól District Court had been married to a lawyer representing the claimant company. He objected to the presence of a seconded district court judge on the bench of the Regional Court. He lastly alleged a breach of Article 8 on account of the court decision ordering him to provide the court expert with access to his home. Mr Popławski complained that the charges against him had been groundless and that the proceedings had been deliberately protracted in order to prevent him from standing for local elections. He alleged that he had not had a fair trial. He also claimed that an aunt of the auxiliary prosecutor, who held a managerial position in the Wołomin District Court, could exert influence on the outcome of the case.

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 applications out of its list of cases in so far as they relate to the complaints concerning the lack of independence of assessors in accordance with Article 37 § 1 (c) of the Convention;

Declares the remainder of those applications inadmissible in so far as they raise other complaints.

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You are here: BAILII >> Databases >> European Court of Human Rights >> Przedsiebiorstwo Komunikacyjno-Spedycyjne TYCHY sp. zo.o. v Poland - 18342/08 [2012] ECHR 77 (4 January 2012) URL: http://www.bailii.org/eu/cases/ECHR/2012/77.html Cite as: [2012] ECHR 77