Resolution CM/ResDH(2013)66 Richert against Poland Execution of the judgment of the European Court of Human Rights

(Application No. 54809/07, judgment of 25/10/2011, final on 25/01/2012)

(Adopted by the Committee of Ministers on 30 April 2013 at the 1169th meeting of the Ministers ’ Deputies)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”),

Having regard to the final judgment transmitted by the Court to the Committee in the above case and to the violation established;

Recalling the respondent State ’ s obligation under Article 46, paragraph 1, of the Convention to abide by all final judgments in cases to which it is party and that this obligation entails, over and above the payment of any sums awarded by the Court, the adoption by the authorities of the respondent State, where required:

- of individual measures to put an end to violations established and erase their consequences so as to achieve as far as possible restitutio in integrum ; and

- of general measures preventing similar violations;

Having invited the government of the respondent State to inform the Committee of the measures taken to comply with the above-mentioned obligation;

Having examined the action report provided by the government indicating the measures adopted in order to give effect to the judgment (see document DH-DD(2013)293E );

Having satisfied itself that all the measures required by Article 46, paragraph 1, have been adopted,

DECLARES that it has exercised its functions under Article 46, paragraph 2, of the Convention in this case and

DECIDES to close the examination thereof.

A ction report [1]

Information about the measures to comply with the judgment in the case of

Richert against Poland

Case description

The case concerns a violation of Article 6 § 1 of the Convention on account of the fact that the applicant was convicted by a tribunal which was not “established by law”.

The Court noted that under the provisions of the Law on the Structure of Courts it was possible to assign judges to sit on benches in courts other than their own. However, certain legal requirements had to be met in order to safeguard judicial independence, to prevent the composition of benches being manipulated in any way and to guarantee a fair hearing. Presidents of courts were empowered to second a judge, provided that he or she agreed thereto and that the board of the assembly of judges of that court gave its assent. Moreover, the applicable provision of the Law on the Structure of Courts limited the period for which such an assignment can be made to thirty days per year.

Certain difficulties and discrepancies in judicial practice arose in connection with the interpretation of the term “tribunal established by law” in the context of judges being assigned to other courts to examine criminal cases. The Supreme Court acknowledged the existence of these difficulties in its resolution of 26 September 2002. It considered it necessary to adopt a resolution clarifying certain procedural aspects of judicial secondments.

The Court observed that the President of the Regional Court seconded Judge L.M., by his letter of 23 August 2004, to sit on the bench of the Regional Court appointed to examine the applicant ’ s case. However, only three hearing dates were specified in that letter: 26 October, and 16 and 23 November 2004. He referred to the agreement to her secondment given by the board of the assembly of judges. Hence, it is not open to doubt that in respect of these three hearings all the requirements were met: the formal assignment, the consent of the board and precise dates indicated in the assignment. Further, it was common ground between the parties that Judge L.M. had not objected to her assignment to the applicant ’ s case.

However, later on, ten hearings in the applicant ’ s case were held in 2005 without any specific document allowing for that judge ’ s assignment to the bench of the Regional Court. A year later, in October 2005, doubts arose as to whether the composition of the first-instance court had complied with the provisions of the domestic law. These doubts were expressed in the letter of the President of the Criminal Division of the Regional Court of 10 October 2005. He asked the President of that court to clarify the terms of the judge ’ s secondment. In his reply, the President stated that the judge had been seconded from 26 October 2004 until a first-instance judgment was to be given in the case.

The Court observed that the President ’ s letter of 26 October 2005 was meant to authorise the secondment with retrospective effect. However, no arguments were submitted to the Court to show that under the applicable provisions of the domestic law, as interpreted by the Polish courts, the retrospective authorisation of a secondment request was one of the lawful procedural methods for assigning judges to other benches.

The Court noted that the correspondence between the President of the Criminal Division and the President of the Regional Court showed that they were uncertain about whether in the applicant ’ s case the secondment of Judge L.M. had respected the applicable procedural requirements.

Accordingly, since the issue of the composition of the court would have been decisive for the outcome of the case, the Supreme Court should have addressed the submission in its judgment.

However, in the absence of an authoritative determination by the Polish judicial authority that the retrospective authorisation of a judge ’ s assignment to the examination of a criminal case was a method compliant with the domestic law, the Court did not have any basis on which it could accept that the composition of the first-instance court between 27 October 2004 and 11 October 2005 complied with the applicable requirements of the domestic law.

Cumulatively, these circumstances did not permit the Court to conclude that the Gdańsk Regional Court, which heard the applicant ’ s case from 24 November 2004 to 3 October 2005, could be regarded as a “tribunal established by law”.

There has accordingly been a violation of Article 6 § 1 of the Convention.

The Court considered that in the particular circumstances of the present case the finding of a violation constituted in itself sufficient just satisfaction for any non-pecuniary damage which may have been sustained by the applicant (§ 66 of the Court ’ s judgment).

Pursuant to article 540 § 3 of the Code of Criminal Procedure, there exists the possibility of re ‑ opening of criminal proceedings after the judgment of the European Court declaring a violation of the Convention is given.

In these circumstances, no other individual measure appears necessary.

In order to clarify the provisions governing secondments of judges and to avoid discrepancies in the interpretation of those provisions on 28 March 2012 the following amendment of the Law on the Structure of Courts was passed.

According to the amended article 77 § 8, the President of the Court of Appeal can second a District, Regional or Appeal Court ’ s judge to the court of the same or lower level located at the Court ’ s of Appeal area after the consent of that judge and the board of the assembly of judges of the Regional Court which has jurisdiction over the court to which the secondment is planned for uninterrupted period, not longer than six months per year has been given.

Secondment of the judge for an uninterrupted period and for no longer than six months per year guarantees that such doubts as occurred in the Richert v. Poland case will not occur in the future.

According to the Court ’ s judgment, the Supreme Court specified the question of determination of the duration of the secondment.

On 24 May 2012, the Supreme Court adopted a resolution concerning the question of the secondment of a judge to another court. According to this resolution the secondment of the judge on the basis of the article 77 § 8 and 9 of the Act of 27 July 2001 – the Law on the Structure of Courts to perform the duties at another court does not authorise that judge to pronounce a judgment issued from his participation after elapsed time of the secondment.

Moreover, according to the judgment of the Supreme Court of 11 July 2012, all the jurisdictional measures of a judge seconded to another court, made in this court, must fall within the scope of the secondment, indicated in the order of the president of the court. Measures made by such judge before or after the period of secondment are without a legal basis and are the measures of the judge incompetent, made beyond his competence and the area of jurisdiction.

This line of case law was confirmed by the Supreme Court on 6 September 2012. The Supreme Court confirmed that the judge seconded to the particular hearing but not to a day of issue of the judgment is not authorised to issue a judgment and the judgment which was issued by him/her is invalid.

The Court ’ s judgment was translated into Polish and published on the Internet site of the Ministry of Justice ( www.ms.g o v.pl ).

In addition, in 2011, a special publication has been prepared which contains the analysis of the Court ’ s case law in leading cases concerning Poland – “Human rights standards under the European Convention on Human Rights” ( Standardy ochrony praw człowieka w prawie Europejskiej Konwencji Praw Człowieka ). The publication also contains the analysis of the standards related to Article 6 § 1 of the Convention. It has been disseminated free of charge among all judges and prosecutors.

In these circumstances, no further general measure appears necessary.

The government considers that no individual measures are necessary in the present case and that the general measures adopted, notably the legislative changes, will be sufficient to conclude that Poland has complied with its obligations under Article 46, paragraph 1 of the Convention in respect to the breach of Article 6, paragraph 1 of the Convention.

[1] Information submitted by the Polish authorities on 20 February 2013.