FOURTH SECTION

DECISION

Applications nos . 46307/09 and 72932/12 Miros Å‚ aw ZBOROWSKI against Poland

The European Court of Human Rights ( Fourth Section ), sitting on 3 March 2015 as a Chamber composed of:

Guido Raimondi , President, Päivi Hirvelä , George Nicolaou , Ledi Bianku , Nona Tsotsoria , Paul Mahoney , Krzysztof Wojtyczek , judges,

and Fatoş Aracı , Deputy Section Registrar ,

Having regard to the above applications lodged on 12 August 2009 and 2 November 2012 respectively,

Having regard to the declaration submitted by the respondent Government on 19 November 2014 and rectified on 28 November 2014 requesting the Court to strike the applications out of the list of cases and the applicant ’ s reply to that declaration,

Having deliberated, decides as follows:

FACTS AND PROCEDURE

1. The applicant, Mr Mirosław Zborowski , is a Polish national, who was born in 1958 and lives in Poznań . He was represented before the Court by Mr P. Narożny , a lawyer practising in Poznań .

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

3. The applications had been communicated to the Government .

A. The Court ’ s judgments in the applicant ’ s earlier cases

4. In the judgment Zborowski v. Poland , no. 13532/03 of 31 October 2006 the Court found a violation of Article 5 § 3 of the Convention on account of the lack of sufficient reasons for the applicant ’ s detention on remand.

5. In the judgment Zborowski v. Poland (no. 2), no. 45133/06 of 15 January 2008 the Court found a violation of Article 8 of the Convention in respect of the monitoring of the applicant ’ s correspondence with his defence counsel, the State authorities and the Council of Europe Information Office.

6. In the judgment Zborowski v. Poland (no. 3) , no. 39519/05 of 22 April 2008 the Court found a violation of Article 8 of the Convention in respect of the monitoring of the applicant ’ s correspondence with his defence counsel between 5 February and 17 October 2001.

B . The circumstances of the case

7. The applicant was a legal counsel ( radca prawny ). He was arrested on 18 January 2001 on suspicion of numerous counts of property fraud. O n 19 January 2001 he was remanded in custody. His detention on remand was subsequently prolonged on numerous occasions. The appli cant was released on bail on 18 January 2005. The facts concerning his detention on remand are set out in the judgment Zborowski v. Poland .

8. On 5 November 2001 the prosecution filed a bill of indictment with the Poznan District Court. The applicant was charged with numerous property frauds, committed jointly with others, by means of the use of forged wills and of false statements of future heirs in inheritance proceedings. Subsequently, the case was transferred to the Szamotu Å‚ y District Court.

9. On 23 April 2004 the Szamotuły District Court convicted the applicant of five counts of property fraud and acquitted him of two charges. It sentenced the applicant to eight years ’ imprisonment and a fine. The court also imposed an eight-year ban to practice as a legal counsel.

10. The applicant appealed. On 15 January 2005 the Poznań Regional Court quashed the first-instance judgment in respect of the applicant ’ s conviction and remitted the case in this part.

11. On 26 June 2007 the Szamotuły District Court , composed of assessor R . O . and two lay judges, gave judgment. It convicted the applicant of five counts of property fraud committed with the use of forged wills and/or false statements of heirs in inheritance proceedings. The court sentenced the applicant to a cumulative penalty of eight years o f imprisonment and a fine of 40,000 Polish zlotys (PLN) . It also imposed an eight-year ban on the applicant to practise as a legal counsel. The applicant jointly with M . L . was ordered to compensate damage of 4,000,000 PLN sustained by the State Treasury. The court credited the period of his pre-trial detention between 18 January 2001 and 18 January 2005 towards the term of his imprisonment.

12. The applicant appealed. He alleged , in particular, that the first ‑ instance court was composed of the assessor who was not independent.

13. On 12 February 2009 the Poznań Regional Court essentially upheld the Szamotu ł y District Court ’ s judgment of 26 June 2007. It dismissed the argument concerning the lack of independence of the assessor, relying on the Constitutional Court ’ s judgment of 24 October 2007.

14. The applicant filed a cassation appeal. On 14 January 2010 the Supreme Court quashed the Regional Court ’ s judgment on account of the lack of impartiality of two judges of the Regional Court and remitted the case for re-examination.

15. On the same day the Supreme Court ordered that the applicant should be released without undue delay. The applicant was released on 18 January 2010.

16. On 9 March 2011 the Poznań Regional Court gave judgment. It essentially upheld the Szamotuły District Court ’ s judgment of 26 June 2007. The participation of the assessor in the examination of the applicant ’ s case was deemed lawful.

17. The applicant lodged a cassation appeal. He challenged, inter alia , the presence of the assessor judge in the composition of the Szamotu Å‚ y District Court.

18. On 17 May 2012 the Supreme Court dismissed the cassation appeal. With regard to the presence of the assessor, the Supreme Court dismissed this argument w ith reference to the Constitutional Court ’ s judgment and the judgment of the Court in the case of Henryk Urban and Rys zard Urban v. Poland of 30 November 2010.

19. On 19 December 2012 the Poznan Regional Court gave judgment. It slightly amended the conviction in respect of one count of fraud. In respect of the cumulative penalty the applicant was sentenced to 7 years and 9 months ’ imprisonment and a fine of PLN 40,000.

20. The applicant lodged a cassation appeal. On 10 December 2013 the Supreme Court dismissed his cassation appeal as manifestly ill ‑ founded.

C . Relevant domestic law

1 . Assessors (junior judges)

21. 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

22. On 23 January 2009 Parliament enacted the Law on the National School for the Judiciary and the Prosecution Service ( Ustawa o Krajowej Szkole SÄ…downictwa 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)).

COMPLAINT S

A. Complaints raised in application no. 46307/09

23. The applicant complain ed under Article 5 § 5 of the Convention that he did not have an enforceable right to compensation in domestic law despite the Court ’ s judgment in his case finding a violation of Article 5 § 3 of the Convention ( Zborowski v. Poland , no. 13532/03 of 31 October 2006 ) . The applicant refer red to the Supreme Court ’ s Resolution 20 September 2007 ( no. I KZP 28/07 ) which held that crediting a period of pre-trial detention towards another penalty imposed on the same person excluded the possibility of bringing a claim for compensation under Article 552 of the C ode of Criminal Procedure in respect of the same period of pre-trial detention.

24. The applicant complain ed under Article 6 § 1 of the Convention that the Szamotu ł y District Court ’ s judgment of 26 June 2007 was given by the assessor RO who was not independent.

B. Complaint s raised in application no. 72932/12

25. The applicant complain ed under Articles 6 § 1 of the Convention about the lack of independence of the assessor R . O. Her lack of independence was demonstrated by the fact that 37% of the content of the second judgment of Szamotu ł y District Court was reproduced from the first trial court ’ s judgment. Furthermore, she conducted the trial in an incompetent manner and refused requests for evidence submitted by the applicant. The applicant also complain ed that the Regional Court and the Supreme Court did not quash the trial court ’ s judgment on the ground that it had been given by the assessor despite the Court ’ s judgments which held that the adjudication by assessors was in breach of Article 6 § 1 of the Convention.

26. The applicant complain ed under Article 5 § 4 of the Convention about the delay in his release from the Poznan Prison. The Supreme Court ordered his release on 14 January 2010 but he was released only on 18 January 2010. He relied on Gębura v. Poland and Mamełka v. Poland .

THE LAW

A. Joinder of the cases

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

B. The applicant ’ s complaints

28. The applicant complained under Article 6 § 1 of the Convention that his case was decided by the assessor R.O. who was not independent. Secondly, the applicant complained about the delay in his release from the Poznan Prison . The Court considers that the latter complaint falls to be examined under Article 5 § 1 of the Convention. Thirdly, the applicant complained under Article 5 § 5 of the Convention that he did not have an enforceable right to compensation in domestic law .

29. After the failure of attempts to reach a friendly settlement, by a letter of 19 November 2014 rectified by a letter of 28 November 2014 the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issue s raised by the applications. They further requested the Court to strike out the applications in accordance with Article 37 of the Convention.

30. The declaration provided as follows:

“ The Government hereby wish to express – by way of the unilateral declaration – their acknowledgment of the breach of Article 6 § 1, Article 5 § 1 and Article 5 § 5 of the Convention.

Having regard to the applicant ’ s distress he allegedly suffered due to breach of the above-mentioned Articles of the Convention the Government declare that they offer to pay the applicant the amount of PLN 8,400 (eight thousand four hundred Polish zlotys), which is to cover any and all pecuniary and non-pecuniary damage as well as costs and expenses, plus any tax that may be chargeable to the applicant, which they consider to be reasonable in the present circumstances of the case. The above sum will be payable within three months from the date of notification of the decision taken by the Court pursuant to Article 37 § 1 of the European Convention on Human Rights. In the event of failure to pay this sum within the said three-month period, the Government undertake to pay simple interest on it, from expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.

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. ... ”

31. By a letter of 2 December 2014 , the applicant indicated that he was not satisfied with the terms of the unilateral declaration and requested the Court to conti nue the examination of his case. He submitted that the general acknowledgment of the violations was insufficient.

32. With regard to the complaint under Article 6 § 1, the applicant referred to certain procedural shortcomings allegedly committed by the assessor R.O. He argued that the assessor had been in a position of dependency vis-à-vis the Vice-President of the District Court who had presided over the first trial of the applicant. She was in the same position vis-à-vis the Minister of Justice who prolonged the assessor ’ s authority to exercise judicial powers. The applicant also alleged that his arguments concerning the assessor had not been properly addressed by the higher courts.

33. With regard to the complaint under Article 5 § 1, the applicant noted that the Government did not address this issue in their declaration and did not acknowledge a breach of this provision.

34. With regard to the complaint under Article 5 § 5, the applicant submitted that the unilateral declaration did not contain any corrective measures to address the practice of the domestic courts that the crediting of the period of a pre ‑ trial d etention towards a term of imprisonment had constituted an adequate compensation for all damage caused by a pre-trial detention.

35. The Court recalls that Article 37 of the Convention provides that it may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to one of the conclusions specified, under (a), (b) or (c) of paragrap h 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 applications”.

36. It also recalls that in certain circumstances, i t may strike out an application under Article 37 § 1 (c) on the basis of a unilateral declaration by a respondent G overnment even if the applicant wish es the examination of the cases to be continued.

37. To this end, the Court examine d 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 ).

38. In the present case, the Court com municated three complaints: (1) whether the Szamotuły District Court , composed of the assessor R.O., which gave judgment in the applicant ’ s case on 26 June 2007, was independent as required by Article 6 § 1 of the Convention ; (2) whether the applicant was deprived of his liberty between 14 January 2010 and 18 January 2010 in breach of Article 5 § 1 of the Convention; and (3) whether the applicant ha d an effective and enforceable right to compensation as required by Article 5 § 5 of the Convention for his detention on remand between 18 January 2001 and 23 April 2004 which was found to be in contravention of Article 5 § 3 by the Court in Zborowski v. Polan d .

39. With regard to the complaint under Article 6 § 1, 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 w ith the requirements of Article 6 § 1 . The Court found a violation of this provision on the ground that assessors 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 (ibid., § 53).

40. 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).

41. In the present case the Court cannot discern , contrary to what was asserted by the applicant, 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 . Neither can the Court discern any substantiated issue with regard to the alleged dependency of the assessor vis-à-vis the Vice-President of the Szamotu ł y District Court . It therefore finds that the issue in the present case is limited to the institutional deficiency reg arding the status of assessors. Furthermore, the alleged procedural errors committed by the assessor R.O. do not concern the question of the institutional lack of independence. 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 He nryk Urban and Ryszard Urban v. Poland judgment and the subsequent practice of the Court regarding Polish assessor cases ( see, inter alia , Taranow icz and 7 other applications v. Poland ( de c. ), no. 45223/08, 6 September 2011; Duda v. Poland ( dec. ), no. 25543/09, 14 February 2012 ).

42. With regard to the complaint under Article 5 § 1, the Court notes the applicant ’ s objection that the Government did not address this issue in their unilateral declaration of 19 November 2014. However, the Court observes that on 28 November 2014 the Government informed the Court that due to a clerical error they had wrongly cited Article 5 § 3 instead of Article 5 § 1 in their declaration. At the same time the Government submitted a rectified declaration acknowledging a breach of A rticle 5 § 1 in the applicant ’ s case. The applicant was sent a copy of the rectified declaration. Accordingly, it is no longer in dispute that the Government acknowledged a violation of this provision.

43. The Court has established in a number of cases, including those brought against Poland, its practice concerning complaints about the violation of Article 5 § 1 of the Convention regarding a delay in release from prison (see, Gębura v. Poland , no. 63131/00, 6 March 2007 ; Oshurko v. Ukraine, no. 33108/05 , § § 101-104 , 8 September 2011 ; Mamełka v. Poland , no. 16761/07, 17 April 2012 ; and Wereda v. Poland , no. 54727/08 , § § 40-45 , 26 November 2013 ). Finally, the Court considers that the award of damages proposed by the Government is commensurate with the awards made by the Court in similar Polish case mentioned-above.

44. With regard to the complaint under Article 5 § 5, the Court notes that the applicant did not institute any domestic proceedings with a view to asserting his right to compensation following the finding of a breach of Article 5 § 3 established by the Court in Zborowski v. Poland , no. 13532/03, 31 October 2006 . It also observes that in the above-mentioned judgment the applicant was awarded EUR 2,500 in respect of non-pecuniary damage. With regard to the alleged deficiency of the unilateral declaration which did not address the existing domestic practice of the crediting of a period of pre-trial detention towards another penalty, the Court recalls that it found this practice incompatible with Article 5 § 5 in the Włoch v. Poland (no. 2) judgment ( no. 33475/08 , § § 32-33 , 10 May 2011 ). In this judgment 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 applicant. In addition, as a result of the above-mentioned judgment the Supreme Court reopened the domestic proceedings which appear to be pending.

45. Therefore, h aving regard to the foregoing and the nature of the admissions contained in the Government ’ s declaration, as well as the amount of compensation proposed – which is consistent with the amounts awarded in similar cases – the Court considers that it is no longer justified to continue the examination of the applications (Article 37 § 1 (c)).

46. Moreover, in light of the above considerations, and in particular given the clear and extensive case-law on the topic, 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 applications (Article 37 § 1 in fine ).

47. Finally, the Court emphasises that, should the Government fail to comply with the terms of their unilateral declaration, the application s could be restored to the list in accordance with Article 37 § 2 of the Convention ( Josipović v. Serbia ( dec. ), no. 18369/07, 4 March 2008).

For these reasons, the Court, unanimously,

Decides to join the applications;

Takes note of the terms of the respondent Government ’ s declaration under Article s 6 § 1, 5 § 1 and 5 § 5 of the Convention and of the modalities for ensuring compliance with the undertakings referred to therein;

Decides to strike the applications out of its list of cases in accordance with Article 37 § 1 (c) of the Convention.

Done in English and notified in writing on 26 March 2015 .

Fatoş Aracı Guido Raimondi Deputy Registrar President