Communicated on 14 September 2017

FIRST SECTION

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

STATEMENT OF FACTS

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

A. The circumstances of the case

The facts of the cases, as submitted by the applicants, may be summarised as follows.

The three applicants were tried in the same set of criminal proceedings concerning charges of passive corruption. The trial before the Poznań Nowe Miasto District Court started on 15 May 2008. D.K., a judge of the District Court, sat on the bench composed of a single judge.

On 3 November 2009 the board of the assembly of the Poznań Regional Court ’ s judges ( kolegium Sądu Okręgowego ) issued a formal agreement to allow the President of that court to second its judges to complete cases pending before the district courts in Poznań , in particular where those judges had started to examine them prior to their subsequent promotion from the rank of a district court judge to the regional court. It was noted that such a blanket consent was necessary, as it had been the case in the previous year, in view of large numbers of requests for seconded judges to sit on benches of the lower courts.

On 26 February 2010 judge D.K. was promoted to the rank of a regional court judge.

On unspecified dates after judge D.K. ’ s promotion, the President of the Poznań Regional Court seconded her to the Poznań Nowe Miasto District Court for each hearing scheduled in the applicants ’ case.

Hearings in their case were held o n the following dates: 6 and 27 June, 11 July, 5 September, 10 and 17 October, 7, 14 and 28 November, 12 December 2008; 16 January, 6 and 13 February, 6, 13 and 20 March, 3 April, 8, 15, 22 and 29 May, 13 and 19 June, 3 July, 21 Augus t, 4, 18 and 25 September, 23 and 30 October, 13 and 27 November 2009 and 8 January, 19 February, 19 March, 10 June, 7 and 21 September, 19 and 20 October 2010.

Judge D.K. sat on the bench as a single judge.

On 25 October 2010 the Poznań Nowe Miasto District Court found the applicants guilty as charged and imposed various prison sentences on them.

The applicants appealed. During the hearing held before the appellate court they complained that a copy of the President ’ s decision seconding judge D.K. to the hearing of 10 June 2010 and a copy of the decision of the board of the assembly of judges consenting to the secondment of regional courts judges to the district court, referred to above, were missing from the case-file.

The Poznań Regional Court subsequently requested the Supreme Court to clarify, by way of a decision, ( postanowienie ), by replying to a legal question about whether a blanket agreement of the assembly of judges (such as the one given in the present case on 3 November 2009, allowing the president to second judges without indicating names of individual judges concerned) was a valid one within the meaning of Section 77 of the Law on the Structure of Courts of Law ( Prawo o ustroju sądów powszechnych , “the Courts Law”).

By a decision of 19 January 2012 the Supreme Court refused to give the ruling. It considered that the Supreme Court ’ s role in the legal questions procedure was to clarify issues which had given rise to doubts in judicial interpretation. The Supreme Court ’ s task in such proceedings was not simply to give a ruling on the issue that a lower court was not sure how to resolve. The interpretation of Section 77 of the Courts Law had been a subject matter of extensive and clear case-law of the Supreme Court. The court reiterated that in its judgment of 22 August 2007 (II KK 197/07) the Supreme Court had held that the assignment of a judge to sit on another bench did not comply with the applicable legal requirements if the local board of the assembly of judges had given only a blanket agreement for all judges of that court to be seconded to other courts. That agreement had to be given on each and every occasion in respect of an individual judge and had to have an individualised character.

Subsequently, the Pozna ń Regional Court gave judgment on the merits in the applicants ’ case. It examined first the ground for appeal concerning the composition of the first-instance court, given that it concerned a fundamental procedural irregularity ( bezwzględna przyczyna odwoławcza ). It noted the board ’ s resolution of 3 November 2009 and its grounds. It noted that Section 77 para. 8 of the Courts Law constituted an exception to the principle that a judge should always sit on a bench of the court to which he or she was assigned. The appellate court noted the resolution of the Supreme Court of 28 May 2009, whereby that court stressed that it was the principle of the judicial system that a blanket resolution of the board of a judicial assembly was insufficient for the purposes of the lawful secondment of a judge. The court further referred to a decision of the Supreme Court of 19 January 2012 (I KZP 17/11) whereby it had held that a judge seconded to sit on a bench in court other than that to which he or she was assigned, should be indicated by name.

The appellate court decided not to apply this approach and justified its decision by the fact that Section 77 of the Courts Law did not specifically indicate that the name of the judge has to be indicated in the agreement for secondment. The decision allowing for secondment could be legally effective if it was couched is such terms as to determine with clarity the criteria which had to be met when judges were seconded to sit on benches of courts that were not their court of assignment. In the present case it was clear that the decision of the board concerned a group of judges who had been promoted to the regional court but still had ongoing cases before the lower court; it was therefore clear that judge D.K. complied with those criteria.

Furthermore, the appellate court was of the view that a copy of the agreement of the board of the assembly of judges for a judge to sit on a bench of another court did not have to be included in the case file; it sufficed that it was included in the persona l file of a seconded judge (III KK 197/07). The fact that this document was not to be found in the applicants ’ criminal case file in respect of one hearing was in compliance with the law.

The applicants appealed to the Supreme Court complaining, inter alia , that the first-instance court had not been a tribunal established by law, relying on the non-nominative character of the agreement of the assembly of judges and on the fact that the individual agreement for judge D.K. was not included in the case file.

On 19 April 2013, the Supreme Court dismissed their cassation appeal by way of a short formulaic statement.

B. Relevant domestic law and practice

Article 180 §§ 1 and 2 of the Constitution reads:

“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. “

Section 77(1) of the Courts Law ( Prawo o ustroju sądów powszechnych ) provides that the Minister of Justice may second a judge to carry out his or her duties in another court. Furthermore, under subsection 8 of that section, the president of a regional court is also 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 not longer than thirty days per year, provided that the board of the regional court ’ s assembly of judges gives its consent.

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

The Supreme Court has examined in a number of judgments the procedural arrangements for the secondment of a judge to sit on the bench of another court.

In its decision of 21 November 2001 (I KZP 28/01) it examined a situation where two judges of a district court were promoted to a regional court during proceedings pending before the district court. They continued to participate in the proceedings until the first-instance judgment was given. It held that it had been in breach of section 24 of the Courts Law and the prohibition that only one judge seconded from another court could sit on a bench. A district-court bench comprising two judges promoted to a higher court during the proceedings, if formal and individual decisions on their secondment had been given, was not properly composed within the meaning of Article 439 § 1 item 2 of the Code of Criminal Procedure.

The court observed that the procedural shortcomings listed in Article 439 § 1 of the Code breached the fundamental principles of a fair hearing, setting minimal procedural standards for the rule of law in a democratic State. If such shortcomings occurred, they always resulted in the judgment on the merits of the case being quashed, regardless of whether they had any influence on the substantive outcome of the proceedings and even where they had not been raised by the appellant. Certain legal writers were of the view that the legislator had put in operation a presumption that such shortcomings always had an impact on the merits of a case.

The court observed that one of the fundamental principles of the administration of justice was that a judge was to carry out his or her function in a given court determined in the nomination act issued by the President. However, the laws governing judicial organisation allowed for judges to be assigned to another court with a view to carrying out their judicial duties for limited periods of time and with their consent. For a judge to be able to sit on a bench of another court, at either a higher, lower or the same level of jurisdiction, a formal decision on secondment was necessary. Such a decision was not merely of an organisational nature; it conferred a judicial role on a judge sitting on that bench.

In a resolution of 26 September 2002 (I KZP 28/2002) the Supreme Court held that a judge could be seconded to sit on a bench of another court either for a period of thirty consecutive days in one year, or for thirty non ‑ consecutive days, for example, the dates of hearings. It noted that there were discrepancies in the practice. Certain presidents of the courts were of the view that only the first approach was correct, while others maintained that it was also acceptable to second judges for successive hearings in a case examined by another court, held on non-consecutive days if their number did not exceed thirty per year. The court held that it was improper to second a judge without specific dates indicated in the secondment decision, or merely for the examination of a specified case, if such a secondment did not refer to specific dates.

In its judgment of 1 October 2002 (V KK 114/02) the Supreme Court examined a situation where a judge had obtained secondment for a specified period to sit on a bench of another court and had continued to do so after that period had ended, in the absence of a new decision on his secondment. It held that only a decision to second a judge to another court made it possible for him or her to sit on a bench of another court. In the absence of such a decision the composition of the court had been incorrect, within the meaning of Article 439 of the Code of Criminal Procedure. This procedural shortcoming amounted to a flagrant breach of the minimum standards of a fair hearing (“ rażąca obraza minimalnego standardu prawidłowego postępowania ”). The court referred to the resolution of 21 November 2001.

In a judgment of 22 August 2007 (II KK 197/07) the Supreme Court held that the assignment of a judge to another bench did not comply with the applicable legal requirements if the local board of the assembly of judges had given only a blanket agreement for all judges of that court to be seconded to other courts. That agreement had to be given on each and every occasion in respect of an individual judge.

In an interlocutory decision of 19 September 2006 (III KO 21/06) the Supreme Court 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. 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 court reiterated that a judge could not be assigned to a bench of another court for more than thirty days during one year.

COMPLAINT

The applicants complain under Article 6 § 1 that the Pozna ń District Court was not a “tribunal established by law” on account of the alleged irregularities concerning the secondment of the Regional Court ’ s Judge D.K. to sit on the bench of the Poznań District Court.

QUESTION TO THE PARTIES

Was the first-instance court which dealt with the applicants ’ case a “tribunal established by law” as required by Article 6 § 1 of the Convention, having regard to the manner in which Judge D.K. was assigned to the case? Reference is made to the fact that the agreement to the secondment of the Poznań Regional Court ’ s judges to sit on benches of the district courts in cases which they had started to examine prior to their subsequent promotion to the rank of judges of the Regional Court was of a blanket nature .

\* MERGEFORMAT APPENDIX

No.

Application no.

Lodged on

Applicant

Date of birth

Place of residence

Represented by

65313/13

08/10/2013

Rafał MACISZEWSKI

24/05/1960

Warszawa

Jacek BRYDAK

66936/13

18/10/2013

Marek GIERLACH

28/11/1955

Czerwony Bor

Jacek BRYDAK

69508/13

18/10/2013

Tomasz ZAPAÅšNIK

22/09/1942

Warszawa

Wojciech GRZESIEK