European Court of Human Rights

FOURTH SECTION

DECISION

Application no. 860/08
by Krzysztof WERSEL
against Poland

The European Court of Human Rights (Fourth Section), sitting  on 1 June 2010 as a Chamber composed of:

Nicolas Bratza, President,
Lech Garlicki,
Ljiljana Mijović,
David Thór Björgvinsson,
Ján Šikuta,
Päivi Hirvelä,
Mihai Poalelungi, judges,
and Fatoş Aracı, Deputy Section Registrar,

Having regard to the above application lodged on 10 December 2007,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Krzysztof Wersel, is a Polish national who was born in 1970 and lives in Brzeg. He is represented before the Court by Mr M. Olejnik, a lawyer practising in Brzeg. The Polish Government (“the Government”) are 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.

On 30 October 2001 the prosecution filed a bill of indictment against the applicant with the Gliwice District Court. He was charged with attempted insurance fraud.

On 14 November 2006 the Gliwice District Court, sitting as an assessor (asesor) and two lay judges (ławnicy), convicted the applicant as charged and sentenced him to thirty months' imprisonment.

The applicant appealed. On 2 July 2007 he supplemented his appeal, arguing that adjudication by an assessor in his case was incompatible with the Constitution.

On 17 July 2007 the Gliwice Regional Court dismissed his appeal. In respect of his objection to the composition of the first-instance court, it considered it unfounded. The Regional Court observed that the statutory provision authorising the assessors to adjudicate benefited from the presumption of constitutionality as long as it was not repealed by the Constitutional Court.

The applicant filed a cassation appeal. On 12 March 2008 the Supreme Court dismissed his cassation appeal as manifestly ill-founded.

B.  Relevant domestic law and practice

1.  Constitutional provisions

The Constitution was adopted by the National Assembly on 2 April 1997 and entered into force on 17 October 1997.

Article 45 § 1 of the Constitution reads:

“Everyone shall have the right to a fair and public hearing of his case, without undue delay, before a competent, impartial and independent court.”

Article 190 of the Constitution, regarding the effects of judgments of the Constitutional Court, provides, in so far as relevant:

“1.  Judgments of the Constitutional Court shall be universally binding and final.

2.  Judgments of the Constitutional Court, ... shall be published without delay.

3.  A judgment of the Constitutional Court shall take effect from the day of its publication; however, the Constitutional Court may specify another date for the end of the binding force of a normative act. Such a time-limit may not exceed eighteen months in relation to a statute or twelve months in relation to any other normative act. ...

4.  A judgment of the Constitutional Court on non-conformity with the Constitution, an international agreement or statute, of a normative act on the basis of which a final and enforceable judicial decision or a final administrative decision ... is given, shall be a basis for reopening of the proceedings or for quashing the decision ... in a manner and on principles specified in provisions applicable to the given proceedings.”

2.  The Law on the Structure of Courts of Law

The Law of 27 July 2001 (as amended) on the Structure of Courts of Law (Prawo o ustroju sądów powszechnych; “the 2001 Act”) sets out comprehensively all matters related to organisation and administration of courts of general jurisdiction, status of judges and their self-governing bodies, position of assessors (asesor) and trainee judges, court employees and officers and lay judges.

The 2001 Act stipulates the necessary requirements that have to be fulfilled to assume the office of a district court judge. A candidate for such office is required, among other conditions, to complete a judge's or prosecutor's training (aplikacja) and then pass the relevant examination. Subsequently, s/he has to work a minimum of three years as an assessor in a district court.

Sections 134-136 of the 2001 Act regulate the position of assessors. They provide, in so far, as relevant:

Section 134

“§ 1.  The Minister of Justice may appoint as an assessor a person who has completed a judge's or prosecutor's training and passed the judge's or prosecutor's examination and who meets the requirements specified in section 61 § 1 (1-4).

[...]

§ 5.  The Minister of Justice may discharge an assessor having given him notice and subject to approval by the board (of judges) of a regional court.”

Section 135

“§ 1.  The Minister of Justice may, subject to approval by the board (of judges) of a regional court, authorise an assessor to exercise judicial powers in a district court for a specified period of time, not exceeding four years. [...]

§ 2.  While adjudicating assessors shall be independent and subject only to the Constitution and statutes.

[...]

§ 5.  During the period in which an assessor exercises judicial powers s/he remains under the supervision of a judge designated to carry out the function of a consulting judge.

[...]”

3.  Judgment of the Constitutional Court of 24 October 2007, case no. SK 7/06

The proceedings before the Constitutional Court were initiated by two constitutional complaints. The first of them was made by J.W., who complained that his detention had been imposed by an assessor. The second complaint was lodged by a company, AD Drągowski S.A., which complained that a prosecutor's decision discontinuing a criminal investigation had been reviewed by an assessor. Both complainants alleged incompatibility with the Constitution of certain provisions of the 2001 Act which govern the position of the assessor.

The Constitutional Court, sitting in full composition, held that section 135 § 1 of the 2001 Act was incompatible with Article 45 of the Constitution, providing for the right to have one's case examined by an impartial and independent court. It found that the vesting of judicial powers in assessors by the Minister of Justice (representing the executive) was unconstitutional since the assessors did not enjoy the necessary guarantees of independence which were required of judges.

As a preliminary point the Constitutional Court considered that the constitutional requirements of independence were equally relevant for all courts, regardless of their level and scope of jurisdiction. It noted that the lack of independence of the first-instance court would amount to a breach of Article 45 of the Constitution even when the second-instance court examining an appeal complied with the requirements of independence.

The Constitutional Court ordered that the unconstitutional provision should be repealed eighteen months after the promulgation of the judgment¹. Its decision was motivated by the fact that assessors constituted nearly 25% of the judicial personnel in the district courts and that their immediate removal would seriously undermine the administration of justice. During the eighteen-month period it was constitutionally admissible for the assessors to continue adjudicating. That period was also necessary for Parliament to enact new legislation dealing with the matter.

The Constitutional Court, having regard to the constitutional importance of the finality of rulings, considered the consequences of its judgment for the validity of rulings given in the past by the assessors. It held that there was no possibility of reopening the proceedings in respect of such rulings under Article 190 § 4 of the Constitution.

4.  The Law on the National School for the Judiciary and the Prosecution Service

On 23 January 2009 the parliament enacted the Law on the National School for the Judiciary and the Prosecution Service (Ustawa o Krajowej Szkole Sądownictwa i Prokuratury) which entered into force on 4 March 2009. The law establishes a comprehensive and centralised institution responsible for training of (future) judges and prosecutors.

In response to the Constitutional Court's judgment of 24 October 2007 the Law on the National School abolished the institution of judicial assessors as provided by the Law of 27 July 2001 on the Structure of Courts of Law (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)).

COMPLAINTS

The applicant alleged a breach of Article 6 § 1 of the Convention, since his case had been adjudicated by an assessor who had not been independent. He further complained that he could not challenge the assessor's ruling under Article 190 § 4 of the Constitution, following the Constitutional Court's judgment of 24 October 2007.

THE LAW

By letter dated 19 January 2010 the Government's observations were sent to the applicant's representative, who was requested to submit any observations together with any claims for just satisfaction in reply by 16 March 2010. This time-limit was subsequently extended to 13 April 2010.

On 12 April 2010 the applicant's representative informed the Court that the applicant, having regard to the observations submitted by the Government, wanted to withdraw the application.

The Court considers that, in these circumstances, the applicant may be regarded as no longer wishing to pursue his application, within the meaning of Article 37 § 1 (a) of the Convention. Furthermore, in accordance with Article 37 § 1 in fine, the Court finds no special circumstances regarding respect for human rights as defined in the Convention and its Protocols which require the continued examination of the case. In view of the above, it is appropriate to strike the case out of the list.

The applicant's representative asked for reimbursement of costs incurred in connection with the case. However, having regard to Rule 43 § 4 of the Rules of Court and the fact that the applicant submitted no observations, the Court considers that there are no grounds to make an award of costs.

For these reasons, the Court unanimously

Decides to strike the application out of its list of cases.

Fatoş Aracı Nicolas Bratza
Deputy Registrar President