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FOURTH
SECTION
CASE OF
HENRYK URBAN AND RYSZARD URBAN v. POLAND
(Application
no. 23614/08)
JUDGMENT
STRASBOURG
30
November 2010
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 Henryk Urban and Ryszard Urban v. Poland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas
Bratza,
President,
Lech
Garlicki,
Ljiljana
Mijović,
David
Thór Björgvinsson,
Ján
Šikuta,
Päivi
Hirvelä,
Mihai
Poalelungi,
judges,
and
Lawrence Early, Section
Registrar,
Having
deliberated in private on 20 October and 9 November 2010,
Delivers
the following judgment, which was adopted on the last mentioned
date:
PROCEDURE
- The
case originated in an application (no. 23614/08) 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 two Polish nationals, Mr Henryk Urban and
Mr Ryszard Urban (“the applicants”), on 17 March
2008.
- The
applicants, who had been granted legal aid, were represented by Mr Z.
Cichoń, a lawyer practising in Cracow. The Polish Government
(“the Government”) were represented by their Agent,
Mr J. Wołąsiewicz of the Ministry of Foreign
Affairs.
- The
applicants alleged that their case had not been heard by an
“independent tribunal”.
- On
30 June 2009 the Court decided to give notice of the application to
the Government. It also decided to examine the merits of the
application at the same time as its admissibility (former Article 29
§ 3 of the Convention, now Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The applicants were born in 1962 and 1960 respectively
and live in Uherce Mineralne.
- Both applicants were charged with the administrative
offence (wykroczenie) of refusing to disclose their identity
to the police. Henryk Urban (“the first applicant”)
was also charged with using offensive language in a public place.
- On
13 September 2006 the Lesko District Court, in summary proceedings,
convicted the applicants as charged. They lodged an objection to the
ruling. Consequently, their case was examined by the District Court
in ordinary proceedings.
- On
two occasions the applicants requested the court to admit a certain
Z.W. to the proceedings as a representative of a civil society
organisation and/or their counsel. The District Court refused their
requests as inadmissible in law. The second applicant was represented
by legal-aid counsel.
- On
7 November 2006 the first applicant filed a request for the
withdrawal of all judges and “assessors” (junior judges)
of the Lesko District Court on the ground that he had lost faith in
them. On 21 December 2006 the Krosno Regional Court decided to
exclude two Lesko District Court judges, J. Ł. and L. R.-S.,
from examining the first applicant's case as they had been victims
and witnesses in an earlier criminal case against the first
applicant. In respect of the other judges and assessors of the Lesko
District Court, the applicant's request was dismissed. The Regional
Court held that the general dissatisfaction of the first applicant
with the decisions given by the District Court in his cases had not
undermined the impartiality of those judges and assessors.
- On
29 December 2006 the District Court decided to examine the two
applicants' cases jointly.
- On
31 August 2007 the first applicant requested that the assessor
(asesor sądowy) B. R.-G. withdraw from the case on the
ground that she had not accepted a medical certificate excusing his
mother from attending a hearing. On 24 September 2007 the Lesko
District Court, sitting as a single judge, dismissed the first
applicant's request as ill-founded and prompted only by his
subjective assessment of the assessor.
- On
2 October 2007 the Lesko District Court, sitting as an assessor, gave
judgment. Both applicants were convicted of failing to disclose their
identity to the police and sentenced to a fine of PLN 100. The first
applicant was acquitted of the other charge.
- The
applicants appealed. They objected, inter alia, to the fact
that their case had been decided by an assessor, alleging that she
was not a judge. They referred to the Constitutional Court's
judgment of 24 October 2007 and submitted that the assessor could not
exercise judicial powers because she did not offer sufficient
guarantees of independence.
- On
10 December 2007 the Krosno Regional Court upheld the District
Court's judgment. It considered the applicants' objections to the
composition of the first-instance court, based on the Constitutional
Court's judgment, unfounded. No further appeal lay against the
Regional Court's judgment.
- According
to the Government, the applicants did not question the ability of an
assessor to give judgments, but they alleged that the particular
assessor who had judged them had not been impartial. The applicants
referred to the assessor as an institution only after the
Constitutional Court's judgment, in the supplement to their appeal.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. 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 the proceedings or for
quashing the decision ... in a manner and on principles specified in
provisions applicable to the given proceedings.”
B. The Law on the Organisation of Courts
- The
Law of 27 July 2001 (as amended) on the Organisation of Courts (Prawo
o ustroju sądów powszechnych; hereinafter “the
2001 Act”) sets out comprehensively all matters related to the
organisation and administration of courts of general jurisdiction,
the status of judges and their self-governing bodies, and the
position of assessors and trainee judges, court employees and
officers and lay judges.
The 2001 Act stipulates the 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, he or she 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
Ҥ 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
Ҥ 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 he or she remains under the
supervision of a judge designated to carry out the function of
a consulting judge.
[...]”
C. Decision of the Constitutional Court of
30 0ctober 2006, case no. S 3/06 (so-called
“signal decision”)
- In
this decision, following the filing of two constitutional complaints
challenging the constitutionality of the status of assessors, the
Constitutional Court decided to draw the attention of the Sejm (the
lower Chamber of the Parliament) to the need to consider a bill on
the system of appointing persons who exercise judicial powers. It
noted that both the National Judicial Council and the Ombudsman had
shared the main arguments of the claimants as to the
unconstitutionality. The Constitutional Court noted that the possible
finding of unconstitutionality in respect of the provisions governing
the status of assessors could have far-reaching consequences for the
whole system of the administration of justice, having regard to the
number of assessors adjudicating in the district courts.
D. 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 that various provisions of the 2001 Act which
govern the position of assessors were incompatible, inter alia,
with Article 45 of the Constitution, providing for the right to have
one's case examined by an impartial and independent court.
- The
Constitutional Court heard the case as a full court
(fourteen judges). In the first part of the operative part it
held that:
“Section 135 § 1 of the Law of 27 July 2001
on the Organisation of Courts was incompatible with Article 45 §
1 of the Constitution.”
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 gave, inter alia, the following reasons:
“3.4. (...) Since Article 45 of the Constitution
explicitly refers to the content of Article 6 of the Convention,
being one of the sources of international law binding on our State,
it should be added that the European Court of Human Rights does not
interpret the concept of “a tribunal” used in the
Convention in the formalistic manner and accepts that “a
tribunal may be composed fully or partly of persons who are not
professional judges” (Ettl v. Austria, judgment of 23
April 1987, no. 9273/81, and Engel and Others v. the Netherlands,
judgment of 8 June 1976). (...)
5.4. In accordance with the text of the
statute, while adjudicating an assessor shall be independent and
subject only to the Constitution and statutes (section 135 § 2).
However, ..., such regulation of itself is only a declaration, not
ensuring the real and effective independence required by the
Constitution, unless the independence is supplemented by concrete
guarantees, namely particular legal regulations related to effective
securing of the observance of the particular elements of the concept
of independence. (...)
5.5. The issue of independence from the
Minister of Justice should be seen from the angle of the assessor's
appointment, the vesting of judicial powers in an assessor and his or
her dismissal. In respect of the appointment, and in particular the
vesting of judicial powers, the statute does not precisely specify
the time frame in which such appointment should be made. Considered
from the functional point of view, independence does not have to mean
appointment for life or appointment until retirement age, but it must
mean a certain level of stability in employment and in the exercise
of judicial powers. It should be indicated here that the Strasbourg
case-law underlines precisely that if judges or persons exercising
judicial powers are not appointed for life, they could be appointed
for a certain term of office, and that they must benefit from a
certain stability and must not be dependent on any authority
(judgment of the ECHR of 23 October 1985 in the case of Benthem
v. the Netherlands, no. 8848/80). It may be indicated
here that in attempting to define more closely a certain minimum
period which would guarantee professional stability the European
Court of Human Rights found three years to be sufficient (judgment of
the ECHR of 28 June 1984 in the case of Campbell and Fell v. the
United Kingdom, nos. 7819/77 and 7878/77, and the judgment of the
ECHR of 22 October 1984 in the case of Sramek v. Austria, no.
8790/79). The regulation of the assessor's status does not contain
such guarantees, since there is no minimum period for which such
a person is employed and no minimum period for which an assessor
is vested with judicial powers. It is undoubtedly a situation which
gives rise to significant misgivings as to its compliance with the
principle of independence. In this respect the situation would have
looked unambiguous if the statute had expressly determined the period
for which an assessor was appointed and the period for which the
judicial powers were vested. The existing regulation, implying
discretion of the minister and the board of judges of the regional
court (...) thus amounts to one-sided dependence of the assessor's
professional status on those organs.
(...)
5.7. The principal argument indicative of the
unconstitutionality of the vesting of judicial powers in an assessor
is the admissibility of his or her dismissal, including even during
the period in which an assessor exercises judicial powers. Even
assuming the constitutional admissibility of the institution of
temporarily vesting those powers in an assessor within the
jurisdictional and temporal limits specified by a statute, then a
rudimentary aspect of the principle of independence which must be
adhered to also in this case requires that it should be possible to
remove an assessor from office only in the same way as judges may be
so removed or even only in some of those cases. The existing
regulation, firstly, does not contain a proviso that the dismissal of
an assessor (at least one who has been vested with judicial powers)
is allowed only as an exception to the rule. Secondly, the statute
does not precisely set out the factual circumstances serving as
justification for dismissal from the office. Thirdly, a decision on
dismissal is taken by the Minister of Justice and not by a court. It
follows that, regardless of whether dismissal from the office of
assessor may be reviewed by a court, the essential requirements
of independence from non-judicial authorities stemming from Article
180 § 1 of the Constitution are not met. The obligation
[to secure] the approval of the board of judges of a regional
court is not a pertinent circumstance, since this body is not a court
but an organ of court administration, and moreover its approval is
also of a discretionary character as there are no specific legal
norms which indicate whether or not a dismissal is justified in a
given situation. Consequently, there are no substantive guarantees
and no adequate procedural guarantees which would indicate that the
assessor's dismissal on the ground of the content of his/her rulings
is excluded. (...)”
The Constitutional Court also found that:
“5.13. The protection of the arbiter's
internal independence from outside, including political, pressures is
particularly difficult when – as in the case of assessors –
it is the Minister of Justice – a political appointee and a
member of the executive – who has influence over their
promotion and career. (...)”
Furthermore,
the Constitutional Court found that an assessor was also dependent on
a board of judges of the regional court since that body was competent
to approve the vesting of judicial powers in him or her and to
dismiss him or her. It also played a consultative role in the
procedure for an assessor's nomination for the position of district
court judge. In addition, the 2001 Act did not prohibit assessors
from being members of political parties.
- In
the second part of the operative part of the judgment the
Constitutional Court held as follows:
“1. The provision mentioned in the first part of
the operative part of the judgment (section 135 § 1 of the 2001
Act) will lose its binding force eighteen months after the
promulgation of the judgment in the Journal of Laws of the Republic
of Poland.
2. The acts of the assessors referred to in section 135
§ 1 of the 2001 Act shall not be subject to a challenge on the
basis of Article 190 § 4 of the Constitution.”
The
Constitutional Court ordered that the unconstitutional provision
should be repealed eighteen months after the promulgation of the
judgment. 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.
- In
respect of the consequences of its judgment, the Constitutional Court
observed, inter alia, as follows:
“6.1. Ruling on the unconstitutionality of section
135 of the 2001 Act, the Constitutional Court did not exclude the
possibility of the existence of assessors as an institution. However,
it questioned its normative framework, having regard to the vesting
of judicial powers in assessors (by the Minister of Justice, a
representative of the executive) to carry out the constitutional
function of the administration of justice without also [securing] the
constitutionally required guarantees of independence which judges
enjoy. Nor should the judgment of the Constitutional Court be
understood as ruling out, in principle, the possibility to allow
adjudication by persons other than judges within the meaning of the
Constitution. In this respect also international standards binding on
Poland indicate many possible types of solutions [which are]
compatible with the rule of law. Those standards should be used by
the legislator when considering a solution [to the problem]. In any
case solutions to be considered should be such as to guarantee real
separation between the judiciary and the other powers (Article 10 of
the Constitution), to loosen the bond between the assessors and the
Minister of Justice [and] to ensure the influence of the National
Judicial Council on the professional career of a judge in spe.
Without prejudging the future normative regulation of the institution
of assessors, the present judgment of the Constitutional Court should
be understood as a negative constitutional assessment of the
currently existing normative model of this institution. (...)
6.4 In the present judgment the unconstitutionality
concerns the institutional provisions [who may exercise judicial
powers]. (...) Thus, the question arises as to the relationship
between the unconstitutionality of the said institutional provisions
and the validity of the judgments given by the assessors. It should
be underlined that the judgments – given [by assessors] during
the period in which, in the light of the then existing
constitutional standard, the vesting of judicial powers in the
assessors was not challenged – cannot be questioned. In
particular, it would be an error to look for any analogy with a
situation in which a ruling was given by a body which was incompetent
or (...) incorrectly composed. It was only the ruling of the
Constitutional Court which, ratione imperii, rebutted the
presumption of constitutionality of the impugned norm [section 135 §
1]. And in order to remove any doubts as to the legal significance of
the rulings given so far by the assessors, the Constitutional Court
included in the operative part a suitable finding (part II (2) of the
operative part). (...)
6.6 The finality of rulings is itself a constitutional
value. (...) Thus, in every case the undermining of the finality of
rulings has to be subject to the careful balancing of the values.
This means that the judgments given by assessors in the period when
the constitutionality of vesting judicial powers in them was not
challenged cannot be automatically questioned. (...) On the one hand
the duly implemented right to a court rules out staffing the
independent court with judges who do not possess the guarantees of
independence, which is determinative of the finding of
unconstitutionality in the present case; on the other hand, were it
allowed to challenge the final judgments given by assessors in the
period when the possibility of vesting judicial powers in them was
not questioned, this would lead to the weakening of the right to a
court and undermine the stability of the law and legal certainty.
(...) The protection of the finality of rulings is constitutionally
embedded in Article 7 of the Constitution, which talks about the
functioning of the public authorities (courts in this case) on the
basis of, and within the limits of, the law. Thus, the final rulings
are backed by the constitutional presumption stemming from this
provision. It may be rebutted – when the ruling itself departs
from the constitutional standard (the unconstitutionality concerning
substantive law or procedure applied in concreto when giving a
final ruling). However, it would be disproportionate to undermine
final rulings on the basis of the finding of pro futuro
unconstitutionality which concerns the composition of a body giving
those rulings, which acted in accordance with the Constitution at the
time of giving them.
(...)
7.5 In the present case the unconstitutionality concerns
the institutional provisions, and thus a relationship between a
concrete ruling and the unconstitutional norm is much more tenuous
than in the case of unconstitutionality of a substantive or
procedural provision applied in an individual case. (...)
In the Constitutional Court's view it is not, however,
possible that the relationship between the unconstitutional
institutional provision (as in the present case) and the final ruling
justifies the reopening of an individual ruling pursuant to Article
190 § 4 of the Constitution. The unconstitutionality of the rule
determining who may be vested with the exercise of judicial powers
does not have to mean that the content of the ruling or the procedure
applied in reaching it is unconstitutional. (...)”
E. The Law on the National School for the Judiciary and
the Prosecution Service
- On
23 January 2009 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 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 for by the Law of 27 July 2001 on the
Organisation of Courts (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)).
F. Judgment of the Constitutional Court of 6 October
2009, case no. SK 46/07
- In
the above judgment the Constitutional Court considered the
relationship between its jurisdiction and the jurisdiction of the
Court. It observed as follows:
“6.3. (...), the Constitutional Court draws
attention to the fact that the control exercised by the European
Court of Human Rights (ECHR) does not as such relate to the
assessment of norms of the legal system of a State where the events
considered as breaches of human rights occurred. [Its control]
concerns concrete facts of breaches of human rights in the activities
of public authorities in respect of concrete persons. In principle it
is not a control of the provisions (norms) which constitute the legal
order of the State, but an examination of a situation concerning
potential individual breaches of human rights and freedoms laid down
in the Convention. The control exercised in an individual case may
occasionally indicate that the domestic legal order also contains
norms which, as applied, led in concreto to a breach of human
rights in the case examined by the ECHR. This does not automatically
amount to the disqualification of a norm in so far as its
constitutionality is concerned.
The jurisdiction of the Constitutional Court in the
constitutional complaint proceedings extends to controlling the
constitutionality of legal norms in accordance with the principle
adopted in Article 79 § 1 of the Constitution: “In
accordance with principles specified by statute, everyone whose
constitutional freedoms or rights have been infringed shall have the
right to appeal to the Constitutional Court for a judgment on the
conformity with the Constitution of a statute or other normative act
on the basis of which a court or administrative authority has issued
a final decision on his freedoms or rights or his obligations as
specified in the Constitution.”
The duty to consider the effects of a relevant judgment
of the ECHR in the activities of the domestic authorities of the
State obliges the Constitutional Court to take into account –
in the framework of its control of the constitutionality of norms –
the standards elaborated by the ECHR, with a view to eliminating
possible conflicts between them. However, the Constitutional Court
does not examine whether the impugned provisions were correctly
applied in individual cases, as this comes within the jurisdiction of
the ordinary and administrative courts. Nor does [The Constitutional
Court], in the proceedings initiated by a constitutional complaint,
examine the compatibility of the reviewed norms with the
international agreements. (...)”
G. Reopening of criminal proceedings
- Article
540 § 3 of the Code of Criminal Procedure provides for the
possibility of reopening the proceedings following a judgment of the
European Court of Human Rights. It reads as follows:
“The proceedings shall be reopened for the benefit
of the accused when such a need results from a decision
(rozstrzygnięcie) of an international body acting on the
basis of an international agreement ratified by the Republic of
Poland.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicants argued that the assessor who had heard their case in the
first-instance court had not been “an independent tribunal”
within the meaning of Article 6 § 1 of the Convention. Article 6
§ 1 of the Convention reads, in so far as relevant:
“In the determination of ... any criminal charge
against him, everyone is entitled to a fair ... hearing ... by
an independent and impartial tribunal established by law.”
A. Admissibility
- The Court notes that this complaint is not manifestly
ill-founded within the meaning of Article 35 § 3 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 applicants' submissions
- The
applicants argued that they had been deprived of a fair trial on
account of the lack of independence of the trial court. They
contended that the relevant legislation on the status of assessors
had not met the standard of “independent tribunal”
required under Article 6 of the Convention. They supported this
contention by the findings of the Constitutional Court in its
judgment of 24 October 2007 and the case-law of the Court.
- Firstly,
persons exercising judicial powers had to benefit from certain
stability and could not be dependent on any authority, while the
regulation concerning assessors fell short of those guarantees.
Secondly, the 2001 Act was deficient as regards the possibility of an
assessor's dismissal. The guarantee of an “independent
tribunal” required that an assessor should be able to be
removed from office only in the same way as judges. However, the
legislation provided for decisions concerning the dismissal of
assessors to be taken by the Minister of Justice and not by a court.
Thus, an assessor was not protected against the influence of the
executive. Thirdly, as regards the perception of an assessor's
independence, the applicants asserted that the administration of
justice had to be carried out in an independent and impartial manner.
They underlined in this connection that their own negative perception
of the assessor's independence was of importance. This had been
reinforced by the mistakes made by the assessor in the proceedings
against the applicants. Lastly, the applicants submitted that the
appellate court had not cured the lack of independence of the trial
court. The appellate court, referring to the Constitutional Court's
judgment, had simply held that the applicants' misgivings about the
trial court's composition had been unfounded.
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 2001 Act was not in conformity with Article 45 § 1 of the
Constitution. Subsequently, the Parliament amended the relevant law
and as of 9 May 2009 the office of assessor ceased to exist in the
Polish legal system. The Government argued that since the source of
the alleged violation had already been identified in the
Constitutional Court's judgment, there was no need for the Court to
deal with the problem of the independence of assessors.
- The
Government commented on the comparison of the level of protection of
judicial independence in the Convention and 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. In that period, the
Constitutional Court had to a large extent been inspired by the
Court's decisions and, in consequence, the Polish standard had in
principle reflected the Convention standard.
- However,
the Constitutional Court's judgment of 24 October 2007 brought about
a fundamental change in this area. It set the constitutional
guarantees on a level significantly higher than that existing and
accepted before. The Government argued that it seemed virtually
impossible for anyone but a professional judge to meet those
standards, even though the Constitutional Court had not excluded the
possibility of justice being administered by “persons with a
status similar to that of judges, officially provided with guarantees
of independence in adjudicating”. In reaction to the judgment,
Parliament abolished the institution of assessors and decided against
introducing any other, similar institution, being aware that in the
light of the new standards the task would be virtually impossible.
- They
emphasised that prior to the Constitutional Court's judgment,
assessors had been universally considered as an institution that
fulfilled the constitutional criteria of independence and
impartiality. The situation had changed significantly only after the
Constitutional Court's “signal decision” (postanowienie
sygnalizacyjne) in which it indicated the need to remedy a legal
deficiency in connection with the examination of case no. SK 7/06.
Thus, the Constitutional Court's judgment of 24 October 2007 should
be assessed in this context as introducing a key modification of the
manner of construing previously accepted institutions of the legal
system.
- In
addition, the Government argued that there were further reasons which
rendered the Constitutional Court's judgment irrelevant to the
outcome of the present case. Firstly, the Convention laid down a
certain minimum standard to be met, while the Polish Constitution, as
the supreme act of domestic law, set out not a minimum but a maximum
standard. In consequence, it could be possible for a measure that
satisfied the Convention standard to be inconsistent with the
constitutional standard. Secondly, the Constitutional Court's review
concerned a single, coherent legal system rather that several dozens
of different systems, so it was possible to develop the standard
further. The Court, on the other hand, had to take into account
differences between various European legal systems and could not set
too detailed and far-reaching directives in its judgments. Thirdly,
the Constitutional Court's review was a formal review of the
conformity of lower ranking provisions with the Constitution and, in
principle, its jurisdiction did not extend to the issue of the
application of a given provision in concreto. In
contrast, the subject-matter of the Court's review was not the legal
provision itself but the substantive content of the regulation and
the effects it produced in an individual case. In conclusion, the
Government noted that the constitutional standard of independence as
laid down in the Constitutional Court's judgment was stricter than
that enshrined in the Convention. Furthermore, the Constitutional
Court's judgment did not determine that a court in which an assessor
adjudicated lacked independence within the meaning of Article 6 §
1.
- The
Government submitted that the office of an assessor differed from
that of a judge. The former had been primarily devised as an
intermediate stage between the judicial traineeship and the office of
a judge. This resulted in a natural differentiation regarding the
appointment procedure, tenure, possibility of dismissal and
remuneration, yet the key element was to establish whether the level
of safeguards provided for assessors was sufficient under Article 6 §
1.
The
Government claimed that if the independence of an assessor were to be
considered from two perspectives, namely the positive one
(the assessor's subordination in administering justice only to
legal norms and their own beliefs) and the negative one (third
parties' inability to persuade them to decide the case in a given
way) then it could be considered that in reality assessors were
independent in respect of their adjudicatory role, even though they
were not equipped with all the constitutional guarantees. In
addition, there were many arguments related to the case-law of the
Court which required that the independence of an assessor be assessed
in a different way than that expressed in the Constitutional Court's
judgment.
- The
Government analysed in detail the provisions of the 2001 Act
regulating the status of assessors and, in particular, those related
to the exercise of judicial powers by them. In their view, those
regulations, which in many respects extended rules applicable to
judges to assessors, fulfilled the standard of judicial independence
defined in Article 6 § 1 of the Convention.
They
emphasised that the constitutional guarantees of independence of the
courts and professional judges (Articles 178-181 of the Constitution)
had materially influenced the status of assessors. An assessor vested
with judicial powers was a member of the community of judges and,
following the common practice, was treated accordingly. In
consequence, any attempt to undermine the actual independence of
assessors had to be interpreted in the context of the guarantees
enjoyed by judges. In practice, it meant that assessors had been
required to comply with those very standards. The judicial community,
particularly interested in maintaining the constitutional guarantees
of independence and impartiality, had always exerted an extremely
strong influence on assessors. The Government further referred to the
fact that both society and the legal community had considered
assessors independent and equal to professional 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).
- As
regards the possibility of dismissing an assessor provided for in
section 134 § 5 of the 2001 Act, the Government argued that this
power of the Minister of Justice had not been unrestrained since the
necessary condition for dismissal was the prior consent of the board
of a Regional Court. That mechanism effectively protected an assessor
against the threat of unjustified dismissal by the executive, thereby
eliminating the possibility of pressure being brought by the
Minister. The Government, basing themselves on the official
statistics, emphasised that the Minister of Justice had never
exercised the power to dismiss an assessor. Accordingly, the above
arrangement had been in compliance with Article 6 § 1 of the
Convention.
- The
Government asserted that in the present case there had been no reason
to consider that the assessor who had adjudicated in the case had not
been objective. The applicants had tried from the outset of the
proceedings to exclude all the judges, and they had subsequently done
the same in respect of the assessor, using the Constitutional Court's
judgment as a pretext. The Government claimed that in their appeal
the applicants had not challenged the fact that their case had been
decided by an assessor, but they had alleged a lack of impartiality
on her part. This had been motivated by the negative outcome of the
trial. The applicants had referred to the “assessor” as
an institution rather than to the particular assessor only after the
delivery of the Constitutional Court's judgment on the sideline of
their appeal. Above all, the applicants had been unable to show that
the assessor had not been independent.
- The
Government lastly drew the Court's attention to the fact that if all
decisions issued by assessors were to be generally challenged by the
Court, it would undoubtedly cause legal chaos. Assessors constituted
about 30% of the judges adjudicating in District Courts and in 2005
alone about 8,600,000 cases were brought before those courts. Were
the Court to find a violation in this and other similar cases, it
would affect at least hundreds of thousands of judicial decisions
given in the last few years. Such a finding would create a breach of
the principle of protection of the citizens' trust in the State and
its law. It would further undermine the need to protect the stability
of the national legal system, as well as the Convention rights of
other participants in those proceedings. Assessors had decided the
majority of civil and criminal cases heard in the first instance
before District Courts. In most of the cases the effects of the
decision made could not be reversed, for example where time spent in
detention on remand had been credited towards the sentence, an
inheritance had been accepted and disposed of, and so on.
- Independently
of the above arguments, the Government highlighted the negative
effect a judgment finding a violation of the Convention in the
present case would have. In their view, the Constitutional Court's
judgment constituted a pretext for submitting the application to the
Court as, prior to its delivery, the independence of assessors had
not been called into question. The finding of a violation by the
Court would create a chilling effect, discouraging the Constitutional
Court from further elevating any constitutional standard. The State
should not suffer any negative consequences for elevating the
standards of protection of individual rights. The chilling effect
would probably affect not only the Polish Constitutional Court but
also similar judicial authorities in other European countries.
- The
Government, referring to the Court's case-law, submitted that
objections regarding the independence and impartiality of the
first-instance court could not be upheld where the case had been
examined by the court of second instance fully satisfying, as in the
present case, the requirements of Article 6 § 1 of the
Convention. They acknowledged that the right to an independent and
impartial court guaranteed in the Convention was of a substantive
nature. Accordingly, since the assessment was carried out in respect
of the result, the legal test was whether a final decision in the
proceedings had been rendered by a court satisfying the requirements
of independence.
- In
conclusion, the Government submitted that the first-instance court,
composed of an assessor, which dealt with the applicants' case had
been independent as required by Article 6 § 1 of the Convention.
3. The Court's assessment
- The
Court recalls that in determining whether a body can be considered as
“independent” – notably of the executive and of the
parties to the case – regard must be had, inter alia, to
the manner of appointment of its members and the duration of their
term of office, the existence of guarantees against outside pressures
and the question whether the body presents an appearance of
independence (see Campbell and Fell v. the United Kingdom, 28
June 1984, § 78, Series A no. 80; Findlay v. the United
Kingdom, 25 February 1997, § 73, Reports of
Judgments and Decisions 1997 I; Incal v. Turkey, 9
June 1998, § 65, Reports 1998 IV; Brudnicka and
Others v. Poland, no. 54723/00, § 38, ECHR 2005 II;
and Luka v. Romania, no. 34197/02, § 37, 21 July
2009). Furthermore, the irremovability of judges by the executive
during their term of office must in general be considered as a
corollary of their independence and thus included in the guarantees
of Article 6 § 1 (see Campbell and Fell, cited above, §
80). What is at stake is the confidence which the courts in a
democratic society must inspire in the public (see, amongst many
other authorities, Piersack v. Belgium, 1 October 1982, §
30, Series A no. 53, and Micallef v. Malta [GC], no. 17056/06,
§ 98, ECHR 2009 ...). The
Court further
recalls that
the requisite guarantees of independence apply
not only to a “tribunal” within the meaning of Article 6
§ 1 of the Convention, but also extend to “the
judge
or other officer authorised by law to exercise
judicial power” referred
to in Article 5 § 3 of the Convention (see McKay
v. the United Kingdom [GC],
no. 543/03, § 35, ECHR 2006 X).
- Although
the notion of the separation of powers between the political organs
of government and the judiciary has assumed growing importance in the
Court's case-law (see Stafford v. the United Kingdom [GC], no.
46295/99, § 78, ECHR 2002-IV), neither Article 6 nor any other
provision of the Convention requires States to comply with any
theoretical constitutional concepts regarding the permissible limits
of the powers' interaction (see Kleyn and Others v. the
Netherlands [GC], nos. 39343/98, 39651/98, 43147/98 and
46664/99, § 193, ECHR 2003 VI, and Sacilor-Lormines v.
France, no. 65411/01, § 59, ECHR 2006 XIII). The
question is always whether, in a given case, the requirements of the
Convention are met and in the present case the Court has to determine
whether the assessor B.R.-G. who tried the applicants in the
first-instance court had the required “appearance” of
independence (see McGonnell v. the United Kingdom,
no. 28488/95, § 51, ECHR 2000 II).
- Assessors
were appointed by the Minister of Justice provided that they met a
number of specific conditions stipulated in the 2001 Act (section 134
§ 1). The Minister could confer on an assessor the authority to
exercise judicial power in a district court, subject to approval by
the board of judges of a regional court and for a period not
exceeding four years (section 135 § 1). Under
section 134 § 5 of the 2001 Act the Minister could remove an
assessor, including those who were vested with judicial powers.
However, the Minister had no unfettered discretion as to removal
since he had to secure the approval of the board of judges of a
regional court.
- 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 (see paragraph
21 above).
- The
Court reiterates that appointment of judges by the executive is
permissible, provided that appointees are free from influence or
pressure when carrying out their adjudicatory role (see Campbell
and Fell, cited above, § 79, and Flux v. Moldova (no. 2),
no. 31001/03, § 27, 3 July 2007). It notes that the principal
reason for the Constitutional Court's finding was related to the
Minister's power to remove an assessor who exercised judicial powers,
and the lack of adequate substantive and procedural safeguards
against the discretionary exercise of that power (see paragraph 21
above, point 5.7 of the judgment). The 2001 Act did not specify what
factual grounds could serve as the basis for removal of an assessor
and provided for the decision on removal to be taken by the Minister
and not by a court. The lack of the requisite guarantees prompted the
Constitutional Court to note that the removal of an assessor based on
the content of his rulings was not excluded.
- Furthermore,
the Constitutional Court found, contrary to what was asserted by the
Government, that the requirement to secure the approval of the board
of judges was not a sufficient safeguard. The Government's statistics
indicating that the Minister of Justice never exercised the power to
remove an assessor do not, in the Court's view, invalidate the
reasons for the finding of unconstitutionality. In addition, the
Constitutional Court was critical of the fact that the 2001 Act did
not contain sufficient guarantees as regards the assessors' term of
office. The regulation did not specify a minimum period for which an
assessor was employed and for which he was vested with judicial
powers.
- The Court reiterates that it is in the first place for
the domestic authorities, notably the courts, to interpret and apply
the domestic law and to decide on issues of constitutionality (see,
among many other authorities, Former King of Greece and Others v.
Greece [GC], no. 25701/94, § 82, ECHR 2000 XII, and
Jahn and Others v. Germany [GC], nos. 46720/99, 72203/01 and
72552/01, § 86, ECHR 2005 VI). 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 Government argued that the Constitutional Court's judgment did
not determine that an assessor lacked independence within the meaning
of Article 6 § 1 of the Convention. However, the Court observes
that in constitutional complaint proceedings the Constitutional Court
has no jurisdiction to review the compatibility of legislation with
international agreements, including the Convention (see paragraph 26
above). 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. It would be
justified for the Court to reach a contrary conclusion only if it was
satisfied that the national court had misinterpreted or misapplied
the Convention provision or the Court's jurisprudence under that
provision or reached a conclusion which was manifestly unreasonable
(see A. and Others v. the United Kingdom [GC], no.
3455/05, § 174 in fine, ECHR 2009 ...). The Court
observes that in some earlier cases it had due regard to rulings of
the Constitutional Court in which the latter declared domestic
legislation unconstitutional and/or incompatible with the Convention
(see, inter alia, in respect of the Bug river claims,
Broniowski v. Poland [GC], no. 31443/96, § 131, ECHR
2004 V; rent-control legislation and Article 1 of
Protocol No. 1, Hutten-Czapska v. Poland [GC], no.
35014/97, § 208, ECHR 2006 VIII; overcrowding of detention
facilities and Article 3 of the Convention, Orchowski v. Poland,
no. 17885/04, § 123, ECHR 2009 ... (extracts); and
regulation of prisoners' visiting rights and Article 8 of the
Convention, Wegera v. Poland, no. 141/07, § 73-74, 19
January 2010).
- 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 (see paragraph 24 above,
point 6.1 of the judgment). 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.
- 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 (see, by contrast,
Stieringer v. Germany, no. 28899/95, Commission decision
of 25 November 1996, in which the relevant German regulation provided
that dismissal of probationary judges was susceptible to judicial
review). It is not necessary to consider other aspects of the status
of assessors since their removability by the executive is sufficient
to vitiate the independence of the Lesko District Court which was
composed of the assessor B.R.-G.
- It remains to be determined whether the failing in
question was rectified on appeal by the Regional Court. This court
was composed of a professional judge with tenure and was thus
“an independent tribunal” as required under Article 6 §
1 of the Convention. The possibility certainly 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, cited above, § 33, and Kyprianou v. Cyprus [GC],
no. 73797/01, § 134, ECHR 2005 XIII). In this
connection the Court notes that the Constitutional Court considered
that review by the second-instance court could not remedy the initial
defect as regards the lack of independence. In the present case, the
Regional Court did not have the power to quash the judgment on the
ground that the District Court had been composed of the assessor
since the assessors vested with judicial powers were – in
accordance with the 2001 Act – authorised to hear cases in
first instance courts. In any event, the applicants raised the
issue of the lack of independence of the assessor in their appeal.
However, the Regional Court dismissed their objections as unfounded.
The Court observes that for the purposes of the Constitutional
Court's judgment, any appeal based on the unconstitutional status of
assessors was bound to fail as the impugned provisions of the 2001
Act remained legally binding for a period of eighteen months
following the promulgation of the judgment. In those circumstances
the Court finds that the Regional Court did not remedy the defect in
question (see, De Cubber, cited above, § 33, and De
Haan v. the Netherlands, 26 August 1997, § 54,
Reports of Judgments and Decisions 1997 IV).
- In
the light of the foregoing, the Court finds that the Lesko District
Court was not independent within the meaning of Article 6 § 1 of
the Convention. There has accordingly been a violation of this
provision.
- The
Court notes that the domestic law provides for a possibility of
reopening of criminal proceedings when such a need results from
a judgment of the Court (see paragraph 27 above). However, in
light of the reasons underlying the finding of a violation in the
present case and having regard to the principle of legal certainty as
expounded in the Constitutional Court's judgment and its own case-law
(see paragraphs 64-65 below), the Court considers that in the present
case there are no grounds which would require it to direct the
reopening of the applicants' case (see, mutatis mutandis,
Öcalan v. Turkey (dec.), no. 5980/07, 6 July 2010). The
Court would not exclude that it might take a different approach in a
case where, for example, the circumstances of a particular case
give rise to legitimate grounds for believing that the
Minister had or could reasonably be taken to have an
interest in the proceedings.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicants also complained under Article 6 § 3 (c)
of the Convention about the District Court's refusal to admit a
representative of a civil society organisation to the
proceedings. Relying on Article 14 of the Convention, they alleged
that their conviction amounted to discrimination on the ground of
their social origin.
- However,
in the light of all the material in its possession, and in so far as
the matters complained of are within its competence, the Court finds
that they do not disclose any appearance of a violation of the rights
and freedoms set out in the Convention or its Protocols. It follows
that this part of the application is manifestly ill-founded and must
be rejected in accordance with Article 35 §§ 3 and 4 of the
Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- 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
applicants claimed 4,000 euros (EUR) each in respect of non pecuniary
damage. They submitted, inter alia, that their case had been
examined by an assessor and not by a judge.
- The
Government argued that the claim was grossly excessive.
- The Court 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
applicants. It refers in this connection to its conclusions set out
in paragraph 56 above regarding reopening.
- The
Court recalls that in the specific context of cases against Turkey
concerning the independence and impartiality of the national security
courts, the Court has indicated in certain judgments that, in
principle, the most appropriate form of redress would be for the
applicant to be given a retrial without delay if he or she so
requested (see, among other authorities, Gençel v.
Turkey, no. 53431/99, § 27, 23 October 2003). The Court
adopted a similar stance in cases against other Contracting Parties
where the finding of a breach of Article 6 was related to the lack of
independence or impartiality of the domestic courts (see, San
Leonard Band Club v. Malta, no. 77562/01, § 70, ECHR
2004 IX, and Gurov v. Moldova, no. 36455/02, § 43,
11 July 2006). The Grand Chamber has endorsed the general approach
adopted in those cases (see, Öcalan v. Turkey [GC], no.
46221/99, § 210, ECHR 2005 IV) and has extended it to cases
where a conviction followed proceedings that entailed breaches of the
requirements of Article 6 of the Convention (see, Sejdovic v.
Italy [GC], no. 56581/00, § 126, ECHR 2006 II).
- However,
it is only exceptionally that a violation, by its very nature, does
not leave any real choice as to the measures required to remedy it
(see, Assanidze v. Georgia [GC], no. 71503/01, § 202,
ECHR 2004 II). In the present case, the Court notes that the
judgment of the Constitutional Court identified a structural
dysfunction and called for a legislative response. Such response was
given by the Parliament which removed the structural dysfunction as
of 2009 (see paragraph 25 above). The Court is of the opinion that in
this particular context the finding of a violation need not
necessarily entail the respondent State's obligation to reopen all
proceedings in which assessors participated at the first-instance
level. In this regard, the Court notes that the Constitutional Court
devoted a substantial part of its judgment to the constitutional
importance of the principle of the finality of rulings. In
particular, it observed that it would be disproportionate and
contrary to legal certainty to allow challenges to final rulings
given by assessors in the period when the manner of conferring
judicial powers on them had not been constitutionally questioned.
Further, it emphasised that the finding of unconstitutionality
concerned institutional provisions, that is, provisions regulating
the composition of the bodies which gave final rulings. The
Constitutional Court considered that the finding of
unconstitutionality in respect of such provisions was not
determinative of unconstitutionality in respect of the content of a
final ruling given by an assessor or the procedure employed to reach
it (see paragraph 24 above in fine). Consequently, the
Constitutional Court held in the operative part of the judgment that
its ruling could not serve as a basis for the reopening of cases
decided in the past by assessors (or with their participation). This
ruling was even extended to two claimants who successfully challenged
the provisions regulating the status of assessors before the
Constitutional Court, thus depriving them of the so-called “right
of privilege” (przywilej korzyści).
- In
this context, the Court recalls its case-law according to which the
principle of legal certainty, which is necessarily inherent in the
law of the Convention, may dispense States from questioning legal
acts or situations that antedate judgments of the Court declaring
domestic legislation incompatible with the Convention. The same
considerations apply where a constitutional court annuls
domestic legislation as being unconstitutional (see Marckx v.
Belgium, 13 June 1979, § 58, Series A no. 31). Moreover, it
has also been accepted, in view of the principle of legal certainty,
that a constitutional court may set a time-limit for the
legislator to enact new legislation with the effect that an
unconstitutional provision remains applicable for a transitional
period (see Walden v. Liechtenstein (dec.), no. 33916/96, 16
March 2000). Referring to the Constitutional Court's decision not to
allow the reopening of the cases decided in the past by assessors on
the ground that it would undermine the principle of legal certainty,
the Court does not consider this interpretation to have been
arbitrary or manifestly unreasonable. Indeed, the Court in its
jurisprudence has underlined the significance of the principle of
legal certainty in the context of final judicial rulings (see,
mutatis mutandis, Brumărescu v. Romania [GC], no.
28342/95, § 61, ECHR 1999 VII).
- The
Court observes that the domestic law provides for a possibility of
reopening of criminal proceedings when such a need results from
a judgment of the Court (see paragraph 27 above). However,
having regard to the foregoing, the Court reiterates its conclusion
that in the instant case the reopening of the applicants' case is not
called for (see paragraph 56 above).
- The
Court would further observe that in the view of the Constitutional
Court the constitutional deficiency identified in its judgment
required the intervention of the legislator to bring the status of
assessors into line with the Constitution, but there was no automatic
correlation between that deficiency and the validity of each and
every ruling given previously by assessors in individual cases. To
that end the Constitutional Court ruled that the unconstitutional
provision should be repealed eighteen months after the promulgation
of its judgment. It is noteworthy 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 – within the time-frame allotted
by the Constitutional Court (see paragraph 25 above).
Having regard to the above, it may be 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.
B. Costs and expenses
- The
applicants also claimed EUR 2,000 in legal costs. Their
representative claimed to have worked 10 hours on the case with an
hourly rate of EUR 200. No receipts or invoices were provided in
support of the sum claimed.
- The
Government submitted that any award should be limited to those costs
which were actually and necessarily incurred and were reasonable.
- The
Court notes that the applicant received EUR 850 by way of legal aid
from the Council of Europe. According to the Court's case-law, an
applicant is entitled to the reimbursement of costs and expenses only
in so far as it has been shown that these have been actually and
necessarily incurred and were reasonable as to quantum. In the
absence of any evidence to support the applicants' claim as to costs
and expenses, no award is made under this head. The
Court observes that in light of the reasons underlying the finding of
a violation in the present case and the fact that the authorities
took adequate measures to address the deficiency at issue, the Court
considers
that there is no justification for awarding legal costs under
Article 41.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint under Article 6 § 1
of the Convention admissible and the remainder of the application
inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds that the finding of a violation
constitutes in itself sufficient just satisfaction for non-pecuniary
damage;
- Dismisses the remainder of the applicants' claim
for just satisfaction.
Done in English, and notified in writing on 30 November 2010,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza Registrar President
