Resolution CM/ ResDH (2012) 197 [1] Henryk and Ryszard Urban against Poland

Execution of the judgment of the European Court of Human Rights

(Application No. 23614/08, judgment of 30 November 2010, final on 28 February 2011)

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 (see document DH-D D ( 2 011)683E );

Recalling that the respondent State ’ s obligation under Article 46, paragraph 1, of the Convention to abide to by all final judgments in cases to which it has been a 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 its above-mentioned obligation;

Having examined the action report provided by the government indicating the measures adopted in order to give effect to the judgment and noting that no award of just satisfaction was made by the Court in the present case (see document DH-DD(201 1 )683E );

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.

ACTION REPORT [2]

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

Henryk Urban and Ryszard Urban against Poland

Case description

Henryk Urban and Ryszard Urban, application no. 23614/08, judgment of 30/11/2010, final on 28/02/2011 .

The case concerns the violation of the right to an independent tribunal due to the fact that the trial court, which ruled in October 2007 on a criminal charge against the applicants, was composed of an assessor (assistant judge) (violation of Article 6 § 1 of the Convention).

The European Court of Human Rights noted that the Polish Constitutional Court, in its judgment of 24/10/2007, had considered that the possibility of conferring the exercise of judicial powers on assessors, provided for under Article 135 § 1 of the Law of 2001 on the Organisation of Courts ( Prawo o ustroju sądów powszechnych , “the 2001 Act”), fell short of constitutional requirements because assessors did not enjoy the necessary guarantees of independence, notably vis-à-vis the Minister of Justice (§ 48 of the Court ’ s judgment).

The Court considered that the assessor in the applicant ’ s case had lacked the independence, as she could have been removed by the Minister of Justice at any time during her term of office and that there had been no adequate guarantees protecting her against the arbitrary exercise of that power by the Minister (§ 53 of the Court ’ s judgment).

The initial defect as regards the lack of independence could not be remedied in the present case by the second-instance court as it did not have the power to quash the judgment on the ground that the court of first-instance had been composed of the assessor since the assessors vested with judicial powers were – in accordance with the 2001 Act – authorized to hear the cases in first-instance courts.

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 applicants (§ 62 of the Court ’ s judgment). The Court also noted that the domestic law provided for a possibility of reopening of criminal proceedings when such a need results from a judgment of the Court. However, in the present case the Court found no grounds which would require it to direct the reopening of the applicants ’ case (§§ 56, 66 of the Court ’ s judgment).

In these circumstances, no other individual measure appears necessary.

II. General measures

The Court noted that the judgment of the Constitutional Court of 24/10/2007 had identified a structural dysfunction and had called for a legislative response. Such response was given by the Parliament which removed the structural dysfunction as of 2009 (§§ 25, 64 of the Court ’ s judgment).

Noting 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, the Court 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 (§ 67 of the Court ’ s judgment).

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

In these circumstances, no further general measure appears necessary.

III. Conclusions of the respondent state

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] Adopted by the Committee of Ministers on 6 December 2012 at the 11 57 th Meeting of the Ministers’ Deputies .

[2] Information submitted by the Polish authorities on 2 August 2011 .