FIRST SECTION

DECISION

Application no. 65313/13 Rafał MACISZEWSKI against Poland and 2 other applications (see list appended)

In the case of Maciszewski and Others v. Poland,

The European Court of Human Rights (First Section), sitting on 23 June 2020 as a Chamber composed of:

Ksenija Turković, President, Krzysztof Wojtyczek, Linos-Alexandre Sicilianos, Armen Harutyunyan, Pauliine Koskelo, Tim Eicke, Raffaele Sabato, judges, and Abel Campos, Section Registrar ,

Having regard to the above applications lodged on 8 October 2013 ,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having deliberated, decides as follows:

THE FACTS

1 . A list of the applicants is set out in the appendix.

2 . The Polish Government (“the Government”) were represented by their Agent, Ms J. Chrzanowska, and subsequently by Mr J. Sobczak, of the Ministry of Foreign Affairs.

3 . The facts of the case, as submitted by the parties, may be summarised as follows.

4 . The three applicants were charged with corruption in the same set of criminal proceedings.

5 . The trial before the Poznań District Court started on 15 May 2008.

6 . The first-instance court was composed of a single judge, D.K.

7 . On 26 February 2010 Judge D.K. was promoted to the Poznań Regional Court. Following her promotion, she was seconded to the Poznań District Court in order to complete the applicants ’ trial.

8 . The secondment of Judge D.K. from the Regional to the District Court was based on individual decisions of the President of the Poznań Regional Court issued in respect of each hearing scheduled in the case. The President ’ s decisions were based on an authorisation of 3 November 2009 issued by the Board of the Poznań Regional Court ( Kolegium Sądu Okręgowego – “the Board”). The Board decided to “allow the President to second those judges ... promoted to the Regional Court to finish their cases pending before the District Court”.

9 . Sitting as a single judge, Judge D.K. continued the applicants ’ trial; hearings were held on 19 March, 10 June, 7 and 21 September, and 19 and 20 October 2010. Prior to the promotion of Judge D.K. on 26 February 2010, the trial court had held thirty-four hearings.

10 . On 25 October 2010 judge D.K., sitting as a single judge of the Poznań District Court, convicted the applicants as charged and imposed on them various sentences.

11 . The applicants appealed. At the hearing held before the Poznań Regional Court they complained of irregularities in the secondment of Judge D.K. to the District Court.

12 . The Regional Court requested that the Supreme Court answer the legal question as to whether the authorisation of the Board, given on 3 November 2009, had constituted a valid legal basis for the secondment of a judge within the meaning of section 77 of the Courts Organisation Act ( Prawo o ustroju sądów powszechnych ).

13 . On 19 January 2012 the Supreme Court refused to issue a case-law clarification, noting that there existed extensive case-law on the matter. The Supreme Court reiterated that it had held on many occasions that a “blanket authorisation” issued by the board of a regional court allowing a president of a court to second judges did not comply with the applicable legal requirements. At the same time, the Supreme Court agreed with the Regional Court that its previous decisions on the subject had been given in “rather different factual circumstances” from those in the case under consideration. The Supreme Court concluded that the main question had therefore been whether, in spite of its case-law, the authorisation of 3 November 2009 could be considered to fulfil the requirements of section 77(8) of the Courts Organisation Act. That question was, however, for the Regional Court to answer.

14 . On 6 March 2012 the Poznań Regional Court gave a judgment on the merits in which it partly upheld and partly amended the applicants ’ convictions. It reiterated that a finding that the first-instance court had been established in breach of the domestic law would amount to an absolute ground for appeal ( bezwzględna przyczyna odwoławcza ). However, the Regional Court considered that this had not been the case since the first-instance court had not been constituted in breach of the law.

15 . The Regional Court found that the authorisation issued by the Board on 3 November 2009 had constituted a sufficient legal basis for the President ’ s secondment of Judge D.K. to the Poznań District Court. In particular, it considered that the Board ’ s authorisation of 3 November 2009 had not been a “blanket authorisation”, which would have fallen short of the requirements of section 77(8) of the Courts Organisation Act, as clarified in the Supreme Court ’ s case-law. The court found that the authorisation, although it had not named Judge D.K., had been drafted unequivocally, in a precise manner, and had left no doubt as to which judges it concerned. On that basis the President of the Regional Court had been right to issue an individual decision seconding Judge D.K. to the lower court so she could complete the trial.

16 . Additionally, the Regional Court noted that the secondment of the higher-instance judge to finish her case in the lower court had not breached any procedural safeguards available to the accused or any constitutional provision regarding the organisation of the courts. The purpose of the secondment was to avoid appointing a new judge and starting a complex trial again. The court dismissed the remainder of the applicants ’ appeals contesting the examination of the evidence and alleging errors of fact and law.

17 . The applicants lodged cassation appeals with the Supreme Court, complaining, inter alia , that the first-instance court had not been a tribunal established by law, relying on the lack of a reference to a specific name in the authorisation issued by the Board.

18 . At a hearing of 19 April 2013, the Supreme Court dismissed the applicants ’ cassation appeals as manifestly ill-founded.

19 . Article 180 §§ 1 and 2 of the Constitution reads as follows:

“1. Judges shall not be removable.

2. The removal of a judge from office, suspension from office, or the assigning of a judge to another bench or position against his will may only occur by virtue of a court judgment and only in situations prescribed in a statute.”

20 . Section 77(8) of the 2001 Courts Organisation Act ( Prawo o ustroju sądów powszechnych ) provides that the president of a regional court is empowered to second a judge of a district court or a regional court to sit on a bench of any court within the jurisdiction of the regional court for a period of no more than thirty days per year, provided that the board of the regional court has given its consent.

21 . Section 24 of the Act provides that no more than one judge seconded from another court can sit on a bench of a court at any one time.

22 . The Supreme Court has interpreted in a number of judgments the legal requirements for the secondment of a judge to sit on a bench of another court. In the period under consideration, the Supreme Court gave the following rulings on a matter related to secondments of judges and the legality of authorisations of boards of regional courts.

23 . In a judgment of 22 August 2007 (III KK 197/07), the Supreme Court held that the assignment of a judge to another bench had not complied with the applicable legal requirements because the board of the regional court had given only a blanket authorisation for all judges of that court to be seconded to other courts. The authorisation had to be given in respect of an individual judge on each and every occasion.

24 . On 24 October 2007 the Supreme Court issued a judgment (III KK 210/07) in which it concluded as follows:

“1. If ... the court was composed of a judge of a district court who, owing to being incorrectly seconded, had not been authorised to sit in a regional court, this amounts to a flaw of an absolute character (Article 439 § 1 (2) of the Code of Criminal Procedure). Such a flaw occurs when no decision seconding a judge has been taken and also when a judge ’ s secondment does not fulfil the legal requirements conditioning its validity and effectiveness.

2. An authorisation of a board to second a judge is an important decision of a supervisory nature, and involves an examination of the merits of secondment of a specific judge, for a specific period of time, and in order to carry out specified actions in a specific court. Therefore, the authorisation must be given in respect of a particular judge and for a specified period of time, which should be no longer than one month in a year. Only with such an authorisation may the president of a court second a judge of a district or regional court to carry out duties outside his or her court.”

25 . On 21 October 2008 the Supreme Court gave a judgment (III KK 288/08) in which it reasoned as follows:

“A resolution of the board of a regional court in respect of the secondment of district court judges to regional courts which is of a blanket character and does not concern a judge seconded by name breaches section 77(8) [of the 2001 Courts Organisation Act]. In the case in issue, the Board had not examined the candidature of a specific judge, instead authorising the President of the Regional Court to personally decide on the secondment of a district court judge to a regional court ... in consequence, the secondment did not have the authorisation of the Board as required by law and as such was not legally valid. A flaw of this kind constitutes an absolute ground for appeal (Article 439 § 1 (2) of the Code of Criminal Procedure) and requires the quashing of the ruling independently of whether such a complaint has been raised in an appeal.”

26 . The Supreme Court has reiterated on several more occasions that decisions of boards of regional courts must refer to a specific judge by name, for example, in its judgments of 28 May 2009 (II KK 338/08) and 17 May 2011 (III KK 104/11).

27 . The Supreme Court has given other judgments on the matter of the secondment of judges, for example its judgment of 20 January 2009 (II KK 230/08) on other roles of the boards, and its judgment of 11 February 2009 on the role of the presidents of courts in the secondment of judges (II KK 265/08). The Supreme Court has clarified on multiple occasions various other conditions for the secondment of judges. For instance, it held that a decision on a judge ’ s secondment had not been issued correctly if it lacked an indication of the specific dates of hearings or other measures in which a seconded judge was to participate (decision of 19 September 2006, III KO 21/06). It further noted that such a shortcoming did not render the proceedings void within the meaning of Article 439 of the Code of Criminal Procedure. The Supreme Court also reiterated that a judge could not be assigned to the bench of another court for more than thirty days in one year.

COMPLAINT

28 . The applicants complained that the first-instance court in their case had not been a “tribunal established by law”, as Judge D.K. had been assigned to the bench in breach of the domestic law.

THE LAW

29 . Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single decision.

30 . The applicants argued that the appointment of the single judge from the Regional Court who had decided their criminal case had not been in accordance with domestic law. Therefore, their criminal charge had not been determined by a “tribunal established by law” as provided for by Article 6 § 1 of the Convention, the relevant part of which reads 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. ...”

31 . The Government submitted that although in the instant case the decision of the Board authorising the secondment of Judge D.K. had not specified her name, it had nevertheless satisfied the domestic legal requirements. The case-law of the Supreme Court on which the applicants had relied concerned a different situation, that of judges seconded from lower to higher-instance courts, which was not the case here. They submitted that the authorisation of the Board had not been a “blanket” one, as had been unequivocally established by the domestic courts, in particular by the Poznań Regional Court on 6 March 2012. The Supreme Court had clearly endorsed this interpretation of its case-law, first when it had invited the Regional Court to interpret the law itself when responding to its request for clarification, and then when it had dismissed the applicants ’ cassation appeals as manifestly ill-founded on 19 April 2013. The Government emphasised that it would have been impossible to have the case upheld by the Supreme Court had there been an irregularity in the way the authorisation of the Board had been issued. The Supreme Court ’ s extensive case-law on the subject demonstrated that it had been vigilant when presidents of the courts had been given blanket powers to second judges.

32 . Moreover, the Government noted that the Court had never disputed the possibility of judges being seconded between courts. In the instant case the judge had been seconded from a higher-instance court to a lower one in order to finish a complex trial in which about forty hearings in total had been held. They concluded that the first-instance court in the applicants ’ case had been a “tribunal established by law” as provided by Article 6 of the Convention and that the applications should be rejected as manifestly ill ‑ founded.

33 . All three applicants submitted that Judge D.K. had been seconded in violation of the procedure provided for by the domestic law. As a consequence, the Poznań District Court had not been a “tribunal established by law”, in breach of Article 6 of the Convention. The applicants noted that the Supreme Court had on many occasions reiterated that the domestic law required that judges be seconded on the basis of an authorisation of the board of a regional court specifically naming them. They argued that since the authorisation of the Board issued in the instant case had not indicated Judge D.K. by her name, it should have been declared illegal.

34 . The Court reiterates that under Article 6 § 1 of the Convention a tribunal must always be “established by law”. This expression reflects the principle of the rule of law, which is inherent in the system of protection established by the Convention and its Protocols (see, for example, Jorgic v. Germany , no. 74613/01, § 64, ECHR 2007 ‑ III). “Law”, within the meaning of Article 6 § 1, comprises, in particular, legislation on the establishment and competence of judicial organs (see, inter alia , Lavents v. Latvia , no. 58442/00, § 114, 28 November 2002).

35 . The Court further reiterates that, in principle, a violation of the domestic legal provisions on the establishment and competence of judicial organs by a tribunal will give rise to a violation of Article 6 § 1 (see Coëme and Others v. Belgium , nos. 32492/96 and 4 others, § 99, ECHR 2000 ‑ VII). The Court therefore has jurisdiction to rule on compliance with the provisions of domestic law on this point. However, in accordance with the general principle that it is primarily for the domestic courts to interpret domestic legislation, the Court may not question their interpretation unless there has been a flagrant breach of domestic law (see Lavents , cited above, § 114, and Coëme and Others , cited above, § 98 in fine ).

36 . The phrase “established by law” covers not only the legal basis for the very existence of a “tribunal”, but also the composition of the bench in each case (see Buscarini v. San Marino (dec.), no. 31657/96, 4 May 2000; Richert v. Poland , no. 54809/07, § 43, 25 October 2011; and Ezgeta v. Croatia , no. 40562/12, § 38, 7 September 2017). The object of the term “established by law” in Article 6 of the Convention is to ensure that the judicial organisation in a democratic society does not depend on the discretion of the executive, but is regulated by law emanating from Parliament. In countries where the law is codified, organisation of the judicial system cannot be left to the discretion of the judicial authorities, although this does not mean that the courts do not have some latitude to interpret the relevant national legislation (see Coëme and Others , cited above, § 98, and Gurov v. Moldova , no. 36455/02, § 34, 11 July 2006).

37 . The applicants were convicted and sentenced at first instance by the PoznaÅ„ District Court, composed of a single judge, D.K (see paragraphs 6 ‑ 10 above). That judge, having started hearing their criminal case, was promoted to a higher-instance court on 26 February 2010. Following her promotion, she was seconded to the PoznaÅ„ District Court in order to finish the applicants ’ trial (see paragraph 7 above).

38 . The procedure for secondment took place in two main stages. Firstly, on 3 November 2009 the Board of the Poznań Regional Court gave its authorisation to the President of the Regional Court to second those judges promoted to the Regional Court to finish their cases pending before the District Court. Secondly, the President issued a decision on the secondment of Judge D.K. for each of the hearings held in the applicants ’ case until the end of their trial (see paragraph 8 above).

39 . The issue of whether the procedure by which Judge D.K. had been seconded in their case had amounted to a breach of domestic law was raised by the applicants with the domestic authorities and examined by them. The applicants considered that the domestic law had been breached in respect of the first stage of the procedure, in that the authorisation of the Board given in their case had in fact been of a “blanket character”. The case-law of the Supreme Court has been clear in considering that “blanket authorisations” amounted to a breach of domestic law as they gave excessive power to the presidents of courts.

40 . The Poznań Regional Court which examined this procedural challenge as the court of second instance gave serious consideration to the matter, referring a request for clarification to the Supreme Court (see paragraph 12 above). The Supreme Court reiterated the domestic law principles and its case-law on “blanket authorisations” and recognised the particularity of the case at hand. At the same time the Supreme Court did not rule on whether Judge D.K. had been seconded in breach of domestic law or not, considering that it was for the Regional Court to apply the law (see paragraph 13 above).

41 . In its judgment of 6 March 2012, the Regional Court concluded that the authorisation of the Board of 3 November 2009 had been an adequate legal basis for the secondment of Judge D.K. (see paragraph 15 above). In short, it had not been of a “blanket character”, which would have amounted to a breach of domestic law. Therefore, the domestic rules on the composition of courts, in particular the secondment of judges, had been respected (compare and contrast Chim and Przywieczerski v. Poland , nos. 36661/07 and 38433/07, § 139, 12 April 2018). In reaching that conclusion, the Regional Court interpreted the domestic law in the light of the Supreme Court ’ s case-law, as instructed by the latter.

42 . Since the Supreme Court twice refused the opportunity to rule on the merits of the issue of the secondment of Judge D.K. in the instant case (see paragraphs 13 and 18 above), the Court cannot but conclude that it endorsed the Regional Court ’ s interpretation of the domestic law. In this connection the Court takes note of the Government ’ s argument that the Supreme Court has systematically quashed rulings of the lower courts on the grounds of incorrect secondment of its judges, in particular where judges have been seconded on the basis of “blanket authorisations” of boards of regional courts (see paragraphs 22 - 27 above). The Government argued that had that been the case in the present case, the Supreme Court would have allowed the cassation appeal and not rejected it as manifestly ill-founded.

43 . It should also be noted that under the domestic law, the incorrect composition of a tribunal was one of the grounds to be examined by the appellate courts, including in the context of cassation proceedings, regardless of whether the appellant had raised that ground in the appeal. Moreover, such a shortcoming rendered the proceedings void (compare and contrast Richert , cited above, § 53). Such a flaw in the proceedings would have amounted to an absolute ground for appeal as observed by the Poznań Regional Court in the instant case (see paragraph 14 above).

44 . The Court reiterates the general principle that the national courts are best placed to interpret the domestic law. The reasoning of the Poznań Regional Court in the instant case included a detailed analysis of the Board ’ s authorisation in the light of the domestic law and the Supreme Court ’ s practice. Its conclusion that in the particular circumstances of the case, despite not referring to Judge D.K. by name, the authorisation had been drafted in an unequivocal manner, thus satisfying the requirements of the law, was well reasoned and bears no appearances of arbitrariness.

45 . The applicants have failed to advance any argument that could allow the Court to call into question the interpretation advanced by the Poznań Regional Court and accepted by the Supreme Court (compare and contrast Henryk Urban and Ryszard Urban v. Poland , no. 23614/08 , § 55, 30 November 2010). Since the Court does not discern any flagrant breach of the domestic law in the instant case, it sees no reason to question that interpretation (see Lavents , cited above, § 114).

46 . The Court accepts that ensuring the correct functioning of the judiciary may require allowing, as provided for by domestic law, the judges to finish their cases in spite of their departure from the court following, for instance, a promotion. To give but one example at international level , Article 23 § 3 of the Convention provides that the Court ’ s judges, after expiry of their term of office, shall continue dealing with the cases they already have under consideration.

47 . Finally, the Court notes that it has not been argued that Judge D.K. lacked independence and impartiality, viewed both subjectively and objectively, within the meaning of Article 6 § 1 in her hearing of the criminal case against the applicants.

48 . In the light of all the material in its possession, and in view of the domestic courts ’ conclusion that Judge D.K. had been seconded to the District Court in compliance with the domestic law, the Court does not find it established that the Poznań District Court was not a “tribunal established by law” as required by Article 6 § 1 of the Convention (see Wieczorek v. Poland (dec.), no. 31264/04, 18 May 2010, and Dryzek v. Poland (dec.), no. 12285/09, § 55, 20 March 2012).

49 . Accordingly, the applications are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court, unanimously,

Decides to join the applications;

Declares the applications inadmissible.

Done in English and notified in writing on 16 July 2020 .

Abel Campos Ksenija Turković Registrar President

Appendix

No.

Application no.

Applicant

Year of birth

Place of residence

Nationality

Represented by

1

65313/13

Rafał MACISZEWSKI

1960Warsaw

Polish

Jacek BRYDAK

2

66936/13

Marek GIERLACH

1955Czerwony Bór

Polish

Jacek BRYDAK

3

69508/13

Tomasz ZAPAÅšNIK

1942Warsaw

Polish

Wojciech GRZESIEK