FOURTH SECTION

DECISION

Application no. 3535/09 Mieczysława WITEK against Poland

The European Court of Human Rights (Fourth Section), sitting on 13 December 2011 as a Chamber composed of:

David Thór Björgvinsson , President, Lech Garlicki , Päivi Hirvelä , George Nicolaou , Ledi Bianku , Nebojša Vučinić , Vincent A. D e Gaetano , judges, and Lawrence Early , Section Registrar ,

Having regard to the above application lodged on 5 January 2009,

Having regard to the declaration submitted by the respondent Government on 17 October 2011 requesting the Court to strike the application out of the list of cases and the applicant ’ s reply to that declaration,

Having deliberated, decides as follows:

THE FACTS

The applicant, Ms Mieczysława Witek , is a Polish national who was born in 1951 and lives in Cracow . She was rep resented before the Court by Ms K. Wisłocka-Sieprawska , a lawyer practising in Cracow . The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs.

A. The circumstances of the case

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

The applicant was involved in a property dispute with her neighbours and the Bochnia municipality. In June 2007 she was charged with the administrative offence of causing damage to a municipal road.

On 16 July 2007 the Bochnia District Court appointed A.K. legal-aid counsel for the applicant. On 28 September 2007 the applicant requested the court to discharge her legal-aid counsel because of the latter ’ s negligence. The court dismissed her motion as groundless, noting that her subjective opinion that she could have “a better legal-aid counsel” was irrelevant.

On 12 and 20 November 2007 the applicant again requested the District Court to discharge her legal-aid counsel for negligence. On 12 November 2007 she declared that she was unable to participate in the hearing because she felt sick. On 15 January 2008 a medical expert reported to the court that the applicant was able to participate in the proceedings.

On 20 February 2008 the applicant declined to accept a letter notifying her of the da te of the next hearing stating that it would “c lash with her plans”.

On 20 March 2008 the Bochnia District Court, composed of an assessor ( asesor ), gave judgment by default. It found that the applicant did not have a valid reason for not appearing before the court. The applicant ’ s counsel was present at the hearing. The District Court convicted the applicant as ch arged and imposed a fine of PLN 650.

The applicant and her counsel lodged appeals. The applicant argued, inter alia , that the District Court had failed to hear her in person and had wrongly assessed evidence. Furthermore, she claimed that her legal-aid counsel had not represented her properly .

On 7 April 2008 the applicant requested the District Court to discharge her legal-aid counsel. S he argued that on 27 March 2008 in another criminal case against her (case no. II K 251/07) the same advocate had been discharged as her legal-aid counsel. On 11 April 2008 the District Court refused the applicant ’ s request. It observed that the grounds for the discharge in case II K 251/07 were relevant only in respect of those proceedings and that in the instant case counsel had actively carried out the defence.

On 14 April 2008 the legal-aid counsel informed the District Court that he had not established communication with the applicant and thus was unable to duly represent her.

On 18 June 2008 the Tarnów Regional Court appointed a new legal-aid counsel for the applicant. The applicant submits that she was served with th e relevant court decision on 16 July 2008.

On 9 July 2008 the Regional Court upheld the District Court ’ s judgment of 20 March 2008. It examined the applicant ’ s arguments in detail and found them unsubstantiated. It observed that the District Court had not erred in giving judgment in default since the applicant had intentionally obstructed the proceedings. In those circumstances, she could not reasonably argue that the District Court had not heard her or some of her evidence. The Regional Court found unsubstantiated the applicant ’ s submissions in respect of the legal-aid counsel ’ s negligence. It noted that the applicant had been granted legal aid although in her case there had been no strict need for such assistance. The Regional Court further found that the District Court had correctly assessed all evidence in the case and shared the lower court ’ s conclusion as to the applicant ’ s guilt. No further appeal lay against the judgment.

The applicant requested the Cracow Regional Bar Association to institute disciplinary proceedings against her first legal-aid counsel. On 6 November 2008 the Dean of the Regional Bar Association imposed a penalty of censure ( upomnienie ) on the advocate. It found the applicant ’ s allegations as to the lack of due diligence on the part of the advocate groundless in terms of his duties as defence counsel. On the other hand, it found that the advocate had breached the rules of professional ethics in that he had failed to react to the applicant ’ s requests for his discharge and had continued representing the applicant despite a serious conflict with her. Both parties appealed. On 16 December 2009 the Disciplinary Court of the Cracow Regional Bar Association upheld the Dean ’ s decision.

B. Relevant domestic law and practice

1. Assessors (junior judges)

The relevant domestic law and practice regarding the status of assessors, including the landmark judgment of the Polish Constitutional Cou rt of 24 October 2007 (case no. SK 7/06), are set out in the Court ’ s judgment in the case of He nryk 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 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 ex ercise judicial powers (section 68 (1)).

THE LAW

A. Lack of independence of the assessor

The appl icant complained under Articles 6 and 7 of the Convention about the lack of independence of the assessor who had examined her case at the first-instance level. The Court considers that this complaint fal ls to be examined under Article 6 § 1 of the Convention which, in so far as relevant, provides:

“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 12 Octobe r 2011 which was received on 17 October 2011 the Government informed the Court that they proposed to make unilateral declaration with a view to resolving the issue raised by the application. They further requested the Court to strike out the applica tion in accordance with Article 37 of the Convention.

The terms of the declaration 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 t ribunal, 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 tri bunal, 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 c ases, as referred to in Article 37 § 1 (c) of the Convention.”

The applicant requested the Court to reject the Government ’ s unilateral declaration and argued that the conditions stipulated in Article 37 § 1 of the Convention for striking her case out were not met. She submitted that the judgments against her had been given in breach of the domestic law and Article 6 § 1 of the Convention. In particular, she argued that she had not been heard by the domestic courts. Lastly, she maintained that her case was similar to the case of Mirosław Garlicki v. Poland and not, as claimed by the Government, to the case of Henryk Urban and Ryszard Urban v. Poland .

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, und er (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”.

Article 37 § 1 in fine includes the proviso that:

“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 o r 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; GoÅ‚ubow ski and 6 other applications v. Poland ( dec .), nos. 21506/08, 22650/08, 34732/08, 41594/08, 554 05/08, 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 He nryk 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 and found, inter alia , as follows:

“ 48. The Constitutional Court considered the status of assessor s in its leading judgment of 24 Oct ober 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 Const itution 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 inde pendence required under Article 45 § 1 of the Constitution, guarantees which are substantively i dentical 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 i ndependence 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.

Furthermore, in the same judgment the Court found that:

“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 an y compensation to the applicant in light of the He nryk 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 acknow ledgment 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 the application out of the list in so far as it concerns the complaint related to the lack of independence of the assessor.

B. Alleged unfairness of the proceedings on account of the negligence of the legal-aid counsel

The applicant complained under Article 6 § 1 of the Convention that the fairness of the proceedings had been adversely affected by the gross negligence of her legal-aid counsel A.K. before the first-instance court. She alleged that the legal-aid counsel had evaded contacts with her and had acted to her detriment on account of his business interests with the Bochnia Municipality .

The Government contested that allegation. They argued that there was no proof that the counsel had been negligent in defending the applicant. His only wrongdoing was that he had objected to the applicant ’ s motion for his discharge.

The Court notes that the applicant unsuccessfully requested the trial court on a number of occasions to discharge her legal-aid counsel A.K. In her appeal against the Bochnia District Court ’ s ju dgment of 20 March 2008, the applicant argued that her legal-aid counsel had failed to duly represent her. However, the Regional Court found no defect in the quality of the counsel ’ s assistance and dismissed the applicant ’ s argument as manifestly ill-founded. The Court observes that in the bar disciplinary proceedings against the counsel it was established that he could not be reproached for the manner in which he had defended the applicant. On the other hand, the disciplinary authorities found that the counsel had breached the rules of professional ethics in that he had continued to represent the applicant despite the serious disagreement between them . Having regard to the foregoing, the Court does not find it established that the applicant did not have a fair trial for the reasons she alleges.

It follows that this complaint is manifestly ill-founded and must be reje cted in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

C. Remaining complaints

The applicant further alleged that she could not defend her interests in the proceedings and that she had not been heard by the police or the trial- court. Furthermore, the District Court held the hearing despite her justified absence on health grounds. She also claimed that her guilt had not been duly established on account of the courts ’ failure to admit expert evidence and accept her argument that she was the owner of the contested property. In respect of the proceedings before the Regional Court , the applicant claimed that two important eye-witnesses had not been heard by that court and that not all her grounds of appeal had been examined. Lastly, r elying on Article 13, she complained about her unsuccessful requests to have a cassation appeal filed by the Ombudsman or the Minister of Justice.

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 reje cted in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Takes note of the terms of the respondent Government ’ s declaration;

Decides to strike the application out of its list of cases in so far as it relates to the complaint concerning the lack of independence of the asse ssor in accordance with Article 37 § 1 (c) of the Convention;

Declares the remainder of the application inadmissible.

Lawrence Early David Thór Björgvinsson Registrar President