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STOKLOSA v. POLAND - 32602/08 [2011] ECHR 1839 (3 November 2011)
URL: http://www.bailii.org/eu/cases/ECHR/2011/1839.html
Cite as:
[2011] ECHR 1839
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FOURTH
SECTION
CASE OF STOKŁOSA v. POLAND
(Application
no. 32602/08)
JUDGMENT
STRASBOURG
3
November 2011
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Stokłosa
v. Poland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Ljiljana Mijović,
President,
Lech Garlicki,
Päivi
Hirvelä,
George Nicolaou,
Ledi
Bianku,
Zdravka Kalaydjieva,
Nebojša
Vučinić, judges,
and Fatoş
Aracı, Deputy
Section Registrar,
Having
deliberated in private on 11 October 2011,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 32602/08) against the Republic
of Poland lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Polish national, Mr Henryk Stokłosa
(“the applicant”), on 2 July 2008.
The
applicant was represented by Mr J. Majewski, Mr A. Reichelt and Mr M.
Gutowski, lawyers practising in Warsaw and Poznań respectively.
The Polish Government (“the Government”) were represented
by their Agent, Mr J. Wołąsiewicz of the Ministry of
Foreign Affairs.
The
applicant alleged that the assessor who had remanded him in custody
had lacked independence, contrary to Article 5 § 3 of the
Convention.
On
7 September 2009 the President of the Fourth Section decided to give
notice of the application to the Government. It was also decided to
rule on the admissibility and merits of the application at the same
time.
On
30 November 2010 the Court (Fourth Section), having regard to the
declaration submitted by the Government and the applicant’s
reply to that declaration, decided to strike out the application of
its list of cases in so far as it related to the complaints under
Article 5 § 4 of the Convention. It also decided to adjourn the
examination of the applicant’s complaint under Article 5 §
3 of the Convention.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1949 and lives in Śmiłowo. He was a
member of the Senate (the upper chamber of the Parliament) between
1989 and 2005 and a prosperous businessman.
On
an unspecified date the prosecution authorities instituted criminal
proceedings against the applicant. It appears that he left Poland in
December 2006. On 30 January 2007 the Warsaw-Praga Północ
District Court ordered that the applicant be remanded in custody.
That decision was upheld on appeal.
On
23 July 2007 the Warsaw-Praga Regional Court issued a European Arrest
Warrant for the applicant. On 12 November 2007 he was arrested in
Germany on the basis of that warrant. On 19 December 2007 the
applicant was extradited to Poland.
Subsequently
the Warsaw-Praga Regional Prosecutor charged the applicant with,
inter alia, numerous counts of bribery of high-ranking
officials of the Ministry of Finance and bribery of a judge of the
administrative court. The applicant was represented by three defence
counsel.
On
21 December 2007, on an application from the Warsaw-Praga Regional
Prosecutor, the assessor R.Z. (junior judge) of the Warsaw Praga
Północ District Court remanded the applicant in custody
until 19 March 2008.
Two
of the applicant’s counsel (Mr J. Majewski and Mr M. Boruc)
lodged appeals against the detention order on 28 December 2007.
Counsel J. Majewski argued, invoking Article 5 § 3 of the
Convention, that the detention order had been given by an assessor
who could not be considered “a judge” or “other
officer authorised by law to exercise judicial power” because
he lacked independence from the executive. Relying on Article 439 §
1 (1) of the Code of Criminal Procedure (“CCP”) he
submitted that the detention order had been given by a
“non-authorised person” (osoba nieuprawniona). In
this respect he referred to the Constitutional Court’s judgment
of 24 October 2007.
On
11 January 2008 the applicant’s third counsel (Mr J. Naumann)
filed an appeal against the detention order.
On
12 February 2008 the Warsaw-Praga Regional Court, sitting as a bench
of three professional judges, dismissed the appeals against the
detention order of 21 December 2007. It held that the assessor could
not be considered as “a non-authorised person to give a
decision” within the meaning of Article 439 § 1 (1) of the
CCP. The Constitutional Court had struck down the provisions allowing
the Minister of Justice to delegate judicial powers to assessors;
however the relevant decisions given by assessors had not been
automatically negated. The court observed that following Poland’s
accession to the European Union domestic law was undergoing a
continuous process of adjustment to the requirements of European law.
However, the transformation of domestic law should not lead to chaos
in the legal order and for that reason the Constitutional Court had
allowed 18 months for the necessary legislative changes to be
implemented. The court observed that at the relevant time the
applicant could only challenge an alleged lack of impartiality on the
part of the assessor under Article 41 § 1 of the CCP.
II. RELEVANT DOMESTIC LAW AND PRACTICE
14. The relevant domestic law and practice
regarding the status of assessors (junior judges), including the
landmark judgment of the Constitutional Court of 24 October 2007
(case no. SK 7/06), are set out in the Court’s judgment in the
case of Henryk Urban and Ryszard Urban
v. Poland, no. 23614/08,
§§ 16-25, 30 November 2010.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 § 3
OF THE CONVENTION
The
applicant complained under Article 5 § 3 of the Convention that
the assessor who had remanded him in custody had not been independent
from the executive. The assessor issued the order for his detention
on the same day on which the prosecutor had made an application for
an order. Furthermore, the assessor gave his decision against the
background of intense media and political scrutiny of the applicant’s
case. Article 5 § 3 of the Convention provides, in so
far as relevant:
“3. Everyone arrested or detained in
accordance with the provisions of paragraph 1 (c) of this
Article shall be brought promptly before a judge or other officer
authorised by law to exercise judicial power ...”
A. Admissibility
The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 (a) of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. The applicant’s submissions
The
applicant contested the Government’s submission that there had
been no need to deal with the issue of the independence of assessors
following the Constitutional Court’s judgment. He argued that
the Convention system had to guarantee the practical and effective
protection of the individual’s rights. The applicant emphasised
that he had no possibility to have the decision concerning his
detention on remand re-opened or quashed on the basis of the
Constitutional Court’s judgment since that judgment had not
been delivered in the proceedings initiated by the applicant. On the
other hand, the applicant’s own constitutional complaint would
have been found inadmissible by the Constitutional Court on the
ground that the contested provisions had already been found
unconstitutional. Furthermore, the impugned provisions of the 2001
Act remained in force for a period of eighteen months following the
promulgation of the judgment and, despite their unconstitutional
character, were applied by the courts. This was confirmed by the
Regional Court’s decision of 12 February 2008 in his own case.
The
applicant submitted that the Constitutional Court had authoritatively
found that the relevant provisions of the 2001 Act had not ensured
the real and effective independence of assessors. In the light of the
relevant jurisprudence of the Court there was also no doubt that the
assessor who had ordered the applicant to be detained on remand had
not offered the guarantees of independence from the executive and the
parties as required under Article 5 § 3. The applicant further
referred to the Court’s finding in the case of Kauczor v.
Poland (no. 45219/06, § 60, 3 February 2009) that “for
many years, at least as recently as in 2007, numerous cases have
demonstrated that the excessive length of pre-trial detention in
Poland revealed a structural problem consisting of a practice that
was incompatible with the Convention”. In his view, the breach
of Article 5 § 3 of the Convention was exacerbated by the fact
that in his and in the majority of cases the decisions imposing
detention on remand had been taken by assessors who lacked adequate
professional and life experience.
The
applicant argued that the defect concerning the status of the
assessor could not have been rectified on appeal. He had raised the
issue of the assessor’s lack of independence and invoked
Article 5 § 3 in his appeal against the detention order.
However, the Regional Court dismissed it. Furthermore, judicial
control in respect of an individual arrested or detained on suspicion
of having committed a criminal offence needed to satisfy certain
requirements, including that it had to be carried out by a judicial
officer within the meaning of the Court’s case-law.
2. The Government’s submissions
The
Government underlined the importance of the principle of
subsidiarity. They observed that the Constitutional Court in its
judgment of 24 October 2007 had ruled that section 135 § 1 of
the Law on the Organisation of Courts (the 2001 Act) had been
incompatible with Article 45 § 1 of the Constitution.
Subsequently, Parliament amended the relevant law and as of 9 May
2009 the office of assessor ceased to exist in the Polish legal
system, and thus there was no need for the Court to deal with the
issue of the independence of assessors.
The
Government averred that an assessor enjoyed similar guarantees as a
professional judge and therefore could be considered “a judge”
or “other officer authorised by law to exercise judicial
power”. First, the assessors performed their tasks on the basis
of the authorisation explicitly set out in the law, namely Article
135 § 1 read in conjunction with Article 2 § 3 of the
2001 Act. Assessors who were vested with the authority to exercise
judicial power were in principle governed by the provisions of the
2001 Act applicable to judges, subject to the exclusions enumerated
in the same Act. Second, assessors adjudicated solely on the basis of
the provisions of the law and within the framework set out by the
applicable procedures. Decisions issued by them were legally binding
and could not be challenged, reversed, remitted for re-examination or
suspended by any organ of the executive. Furthermore, assessors had
to meet the same requirements in respect of their integrity as judges
and respect the principles of judicial ethics. Moreover, they took an
oath before the Minister of Justice which was similar to the oath
taken by judges. The Government further referred to the fact that the
public at large had widely considered assessors as judges. They also
pointed to the existence of institutions similar to that of the
assessor in a number of European countries (Germany, Austria, the
United Kingdom, the Netherlands, Luxembourg, and Estonia).
The
Government further submitted that under the 2001 Act assessors could
have been entrusted with the exercise of judicial powers only in
district courts, acting as courts of first instance. The rationale
behind this regulation was to enable assessors to acquire judicial
experience and, secondly, to provide for the possibility of having
their decisions corrected by professional judges. In consequence,
every judgment as well as other appealable decision – including
a decision on detention on remand – given by an assessor could
have been challenged before a higher-instance court composed of
professional judge(s).
In
the present case the applicant’s lawyers lodged appeals against
the detention order of 21 December 2007 given by the assessor of the
Warsaw Praga Północ District Court, in which they
argued that the assessor had not met the requirements of Article 5 §
3 of the Convention by reason of his lack of independence. On 12
February 2008 the Warsaw Regional Court, sitting as a bench of three
professional judges, reviewed the assessor’s decision and
dismissed the appeals. Thus, at the appellate stage of the
proceedings the applicant enjoyed the right to have the legality of
the detention order examined by a professional judge.
In
any event, having regard to the fact that the applicant had fled
Poland and that the European Arrest Warrant had been issued for him
by the Warsaw-Praga Regional Court, the Government argued that it was
highly probable that any court, irrespective of its composition,
would have ordered the applicant’s detention on remand.
The
Government commented on the comparison between the level of
protection of judicial independence in the Convention and that
guaranteed under the Polish Constitution. They maintained that up
until 2007 the Court and the Polish Constitutional Court had
interpreted the requirements of independence and impartiality in a
similar manner. However, the judgment of 24 October 2007 brought
about a fundamental change in this area. It placed the constitutional
guarantees on a significantly higher level. In reaction to the
judgment which had introduced extremely strict standards, Parliament
decided to abolish the institution of assessors. Lastly, the
Government underlined that the Convention laid down a certain minimum
standard, while the Constitution set out a maximum standard. In
consequence, it could be possible for a measure that satisfied the
Convention standard to be inconsistent with the constitutional
standard.
In
conclusion, the Government submitted that there had been no violation
of Article 5 § 3 in the present case.
3. The Court’s assessment
The
Court recalls that it has already dealt with the institution of
Polish assessors from the standpoint of Article 6 of the Convention.
In the judgment
Henryk Urban and Ryszard Urban v. Poland (no. 23614/08,
30 November 2010) the Court examined the question of the
independence of a “tribunal” composed of an assessor in
terms of conformity with the requirements of Article 6 § 1
and found as follows:
“48. The Constitutional Court
considered the status of assessors in its leading judgment of 24
October 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 Constitution 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 independence required under Article 45 § 1 of
the Constitution, guarantees which are substantively identical 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 independence 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. ...”
Thus,
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, namely whether the circumstances of a
particular case gave rise to legitimate concerns for believing that
the Minister of Justice – Prosecutor General had or could
reasonably be taken to have had an interest in the proceedings (see
Henryk Urban and Ryszard Urban, cited above, § 56 in
fine).
In
the subsequent case of Mirosław Garlicki v. Poland
(no. 36921/07, §§ 106-116, 14 June 2011) the Court
examined to what extent the Urban holding could be relevant
for the determination of a complaint under Article 5 § 3 that
detention on remand had been ordered by an assessor. It recalled that
the “officer authorised by law to exercise judicial power”
was not identical with the “judge” but had to
nevertheless have some of the latter’s attributes, that is to
say he had to satisfy certain conditions each of which constituted a
guarantee for the person arrested. The first such condition was
independence from the executive and the parties (see Schiesser v.
Switzerland, 4 December 1979, § 31, Series A no. 34).
The Court went on to observe that this interpretation corresponded to
the rationale of the judicial protection of an individual arrested on
suspicion of having committed a criminal offence which served to
provide effective safeguards against the risk of ill-treatment and
against the abuse of powers bestowed on law enforcement officers or
other authorities (see McKay v. the United Kingdom [GC], no.
543/03, § 32, ECHR 2006 X).
In
consequence, the Court held that the requisite
guarantees of independence applied not only to a “tribunal”
within the meaning of Article 6 § 1 of the Convention, but
also extended to “the judge or other officer authorised by law
to exercise judicial power”
referred to
in Article 5 § 3 of the Convention (see Mirosław
Garlicki, cited above, § 113).
In
the present case the issue of institutional deficiency of the status
of assessors is the same as in the Mirosław Garlicki case.
Accordingly, the Court finds that the assessor R.Z. who detained the
applicant on remand did not offer the guarantees of independence
required of an “officer” by Article 5 § 3 of
the Convention, the reason being that he could have been removed by
the Minister of Justice at any time during his term of office and
that there were no adequate guarantees protecting him against the
arbitrary exercise of that power by the Minister (see Mirosław
Garlicki, cited above, § 113).
The
applicant further alleged that the assessor R.Z. had given the
decision remanding him in detention against the background of intense
media and political scrutiny of the applicant’s case. He did
not elaborate on this allegation in his written observations
submitted to the Court. The Court notes that the applicant was a
long-serving member of the Senate (the upper chamber of the
Parliament) and a successful businessman and, consequently, was a
well-known public figure in the country. Those elements, together
with the nature of the charges brought against the applicant, appear
to justify the media and political interest in the case against him
(see Craxi v. Italy (no. 2), no. 25337/94, §§
63-64, 17 July 2003). However, on the facts of the case, the Court
cannot discern any specific circumstances giving rise to legitimate
concerns for believing that the Minister of Justice –
Prosecutor General had or could reasonably be taken to have had an
interest in the proceedings against the applicant which, in turn,
could have influenced the decision of the assessor R.Z. in the case
(compare and contrast, Mirosław Garlicki, cited above, §
114).
The
Government argued that any failing in respect of the decision given
by the assessor of the Warsaw-Praga Północ District Court
was rectified on appeal as his decision was reviewed and upheld by
the Warsaw Regional Court sitting as a bench of three professional
judges. The Court does not accept this argument. It is true that in
the context of a breach of Article 6 § 1 of the Convention the
possibility exists that a higher or the highest court might, in some
circumstances, make reparation for defects that took place in the
first-instance proceedings (see De Cubber v. Belgium,
26 October 1984, § 33, Series A no. 86, and Kyprianou v.
Cyprus [GC], no. 73797/01, § 134, ECHR 2005 XIII).
However, the Court finds that the doctrine of rectification of
defects which occurred at the first-instance level does not apply to
the judicial control of a person’s arrest or detention on
suspicion of having committed a criminal offence under Article 5 §
3 of the Convention. The logic and the rationale of the Article 5 §
3 review requires that it is the judicial officer who has to satisfy
the various conditions as defined in the Court’s case-law under
Article 5 § 3 of the Convention, in particular he must offer the
requisite guarantees of independence from the executive and the
parties (see Schiesser v. Switzerland, §§ 31-32;
McKay,
§ 35; and Mirosław Garlicki, §
115, all cited above) This is supported by the fact that decisions on
detention made by the “judge or other officer” under
Article 5 § 3 are normally enforced instantly, for which reason
deficiencies cannot be effectively rectified on appeal. In addition,
the Court notes that the applicant raised the issue of the status of
the assessor and invoked Article 5 § 3 in his appeal against the
detention order of 21 December 2007; however the Regional Court
dismissed it.
In
the light of the foregoing, the Court finds that the assessor R.Z.
of the Warsaw-Praga Północ District Court was not
independent of the executive as required under Article 5 § 3 of
the Convention. There has accordingly been a violation of this
provision.
II. APPLICATION OF ARTICLE 41 OF THE
CONVENTION
35. Article 41 of the Convention provides:
“If the Court finds that there has
been a violation of the Convention or the Protocols thereto, and if
the internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
The
applicant sought an award in respect of non-pecuniary damage in
connection with the breach of Article 5 § 3 and related
suffering and distress. He left it to the Court to determine the
appropriate sum in accordance with the relevant criteria.
The
Government made no observations in this respect.
The
Court recalls that it has found no specific circumstances in the
present case which could give rise to the assumption that the
Minister of Justice – Prosecutor General could have been taking
an interest in the proceedings against the applicant. Accordingly, it
considers that in the particular circumstances of the instant case
the finding of a violation constitutes in itself sufficient just
satisfaction for any non pecuniary damage which may have been
sustained by the applicant (see Henryk Urban and Ryszard Urban,
§ 62; compare and contrast Mirosław Garlicki, §§
114 and 154, both cited above).
B. Costs and expenses
39. The
applicant made no claim for reimbursement of costs and expenses.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Declares
the remainder of the application admissible;
2. Holds
that there has been a violation of Article 5 § 3 of the
Convention;
3. Holds that the finding of a violation constitutes in itself
sufficient just satisfaction for any non-pecuniary damage suffered.
Done in English, and notified in writing on 3 November
2011, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Ljiljana
Mijović
Deputy Registrar President
