Waldemar TARANOWICZ v Poland - 45223/08 [2011] ECHR 1473 (6 September 2011)

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The European Court of Human Rights (Fourth Section), sitting on 6 September 2011 as a Chamber composed of:

Nicolas Bratza, President,
Lech Garlicki,
Ljiljana Mijović,
Päivi Hirvelä,
George Nicolaou,
Ledi Bianku,
Vincent A. De Gaetano, judges,
and Fatoş Aracı, Deputy Section Registrar,

Having regard to the declarations submitted by the respondent Government on 20 May and 6 June 2011 requesting the Court to strike the applications out of the list of cases and the applicants’ replies to those declarations,

Mr Waldemar Taranowicz, a Polish national who was born in 1955 and lives in Dziwnów. He was represented before the Court by Mr D.J. Babski, a lawyer practising in Szczecin.

Mr Wiesław Wnęk, a Polish national who was born in 1965 and lives in Domaradz.

Mr Adam Komórek, a Polish national who was born in 1962 and lives in Domaradz. He was represented before the Court by Ms A. Lulek Gerlach, a lawyer practising in Rzeszów.

Ms Agata Winczowska, a Polish national who was born in 1963 and lives in Sanok. She was represented before the Court by Mr K. Litwin, a lawyer practising in Sanok.

Ms Bożena Rudzka, a Polish national who was born in 1951 and lives in Radziejów. She was represented before the Court by Mr J. Kalicki, a lawyer practising in Warsaw.

Mr Sławomir Rogaski, a Polish national who was born in 1961 and lives in Warsaw.

Mr Jerzy Kozłowski, a Polish national who was born in 1939 and lives in Warsaw.

Mr Michał Chrostowski, a Polish national who was born in 1987 and is currently serving a prison sentence in Warsaw Białołęka Remand Centre.

The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs.

The applicant is editor in chief of a local biweekly “Pomorzanin” published in Kamień Pomorski. He claims to have received by mail copies of some documents of the communist security services concerning ML, who at the relevant time stood for mayoral elections in Dziwnów. In the first round of elections held on 12 November 2006 ML received the largest number of votes. In the first round of the same elections KL came third. The applicant was an unofficial spokesperson of an electoral committee which supported KL. BB was a representative of the same committee. After the first round of local elections ML started talks with KL about the possibility of the latter supporting ML.

On 15 November 2006 ML filed a criminal complaint against the applicant. He alleged that at a meeting which took place at his home the applicant and BB had threatened him that documents showing his collaboration with the secret police would be published unless he withdrew from standing in the elections. On 16 November 2006 the journal “Pomorzanin” ran an article about ML’s alleged collaboration with the security services.

On an unspecified date the prosecution filed a bill of indictment with the Kamień Pomorski District Court. The applicant was charged with having interfered with the exercise of ML’s right to stand for election on account of the threat to publish information about his collaboration with the communist security services (Article 249 (2) of the Criminal Code).

On 23 November 2007 the Kamień Pomorski District Court, composed of an assessor and two lay judges, convicted the applicant as charged and sentenced him to three months’ imprisonment suspended on probation and a fine in the amount of PLN 1,600. The applicant was also ordered to pay the State’s costs (PLN 220).

The trial court heard evidence from ML, his wife (AL) and a friend (WG), the applicant, BB and KL.

The court established that on 15 November 2006 the applicant and BB had met with ML in the latter’s home. The applicant presented ML copies of documents which confirmed that ML had been a collaborator of the security services. The applicant told ML that those documents would be published on the following day in the local biweekly “Pomorzanin” unless ML withdrew from the elections. ML stated that those documents had not meant anything to him.

During the trial the applicant claimed not to have committed the alleged offence. He averred that he had gone to see ML as a journalist in order to verify the accuracy of the materials about his collaboration with the security services. The applicant claimed that ML had consulted a draft article to be published the following day and had not stated his position on the accuracy of the documents. He also stated that he had been a member of the electoral committee of KL but had not held any official or unofficial function on it.

The trial court did not consider credible the applicant’s assertion that he had not visited ML as a representative of KL’s electoral committee but as a journalist as that assertion was contradicted by other evidence in the case. Furthermore, the trial court did not accept the applicant’s evidence about the course of the meeting with ML owing to discrepancies between his and BB’s accounts of the meeting which had lasted only a few minutes.

The court did not consider BB’s evidence credible. That witness had claimed not to have had any contact with the applicant after the meeting in ML’s house. However, the list of phone calls made by BB indicated that after the meeting he had phoned the applicant eight times.

The trial court found the evidence of ML credible. Shortly after the meeting he had decided to file a criminal complaint against the applicant and had presented a consistent version of the relevant events throughout the proceedings.

The trial court noted that it was not its role to assess the fact that ML had not revealed his collaboration with the security services but observed that he had no legal obligation to do so in the context of local elections. Having regard to the above considerations, the trial court found the applicant guilty of the offence specified in Article 249 (2) of the Criminal Code.

The applicant and his lawyer appealed. The applicant’s lawyer contested the trial court’s findings as to the lack of credibility of the applicant and BB. He also alleged that the assessment of the facts and the law had been erroneous. The applicant in his appeal challenged the arbitrary assessment of the evidence and, in particular, the refusal to hear two witnesses for the defence. The prosecutor and ML, who acted as a private prosecutor, also appealed.

On 19 March 2008 the Szczecin Regional Court upheld the first instance judgment, finding the appeals manifestly ill founded. It concurred with the trial court’s assessment of the evidence. In respect of the refusal to hear witnesses for the applicant, the Regional Court found that the refusal was justified as the evidence of those witnesses would not have concerned the meeting held on 15 November 2006 and was thus irrelevant to the determination of the case.

The applicant was a deputy mayor of the Domaradz Commune. He was charged with fraud, forgery of documents and abuse of authority.

On 12 September 2005 the Brzozów District Court convicted the applicant as charged and sentenced him to six months’ imprisonment suspended on probation and a fine. The applicant appealed. On an unspecified date the Krosno Regional Court quashed the first instance judgment and remitted the case.

On 21 December 2006 the Brzozów District Court, composed of an assessor and two lay judges, convicted the applicant as charged and imposed the same penalties as in its first judgment. The applicant appealed. On 25 April 2007 the Krosno Regional Court again quashed the first instance judgment and remitted the case.

On 19 March 2008 the Brzozów District Court, composed of an assessor, convicted the applicant as charged and sentenced him to six months’ imprisonment suspended on probation. The applicant appealed.

On 8 July 2008 the Krosno Regional Court amended the first instance judgment and conditionally discontinued the criminal proceedings against the applicant.

The applicant was a mayor of the Domaradz Commune. He was charged with fraud, forgery of documents and abuse of authority.

On 12 September 2005 the Brzozów District Court convicted the applicant as charged and sentenced him to ten months’ imprisonment suspended on probation and a fine. It further prohibited the applicant from holding any managerial posts for a period of three years. The applicant appealed. On an unspecified date the Krosno Regional Court quashed the first instance judgment and remitted the case.

On 21 December 2006 the Brzozów District Court, composed of an assessor and two lay judges, convicted the applicant as charged and sentenced him to twelve months’ imprisonment suspended on probation and a fine. It also prohibited the applicant from holding any managerial posts for a period of three years. The applicant appealed. On 25 April 2007 the Krosno Regional Court again quashed the first instance judgment and remitted the case.

On 19 March 2008 the Brzozów District Court, composed of an assessor, convicted the applicant as charged and imposed the same penalties as in the second judgment. The applicant appealed. On 8 July 2008 the Krosno Regional Court amended the first instance judgment and conditionally discontinued the criminal proceedings against the applicant.

The applicant is a teacher. She was charged with assault of her neighbour. On 20 December 2007 the Sanok District Court, composed of an assessor, convicted the applicant as charged and sentenced her to four months’ imprisonment suspended on probation and a fine. She was also ordered to pay PLN 3,000 to the victim of the assault. The applicant appealed.

On 30 October 2008 the Krosno Regional Court upheld the first instance judgment.

The applicant submits that as a result of her conviction her employment contract was terminated under section 26 § 1 (3) of the Teacher’s Charter. This provision provides for ex lege termination of the employment contract in the event of a teacher’s final conviction of an offence committed intentionally.

The applicant was charged with theft and forgery of documents. On 10 April 2008 the Radziejów District Court, compose of an assessor and two lay judges, convicted her as charged and sentenced her to eighteen months’ imprisonment suspended on probation and a fine. She was further ordered to compensate the victim of the offence. The applicant appealed.

On 1 July 2008 the Włocławek Regional Court upheld the first instance judgment. The applicant filed a cassation appeal in which she argued that the trial court had included an assessor.

On 17 December 2008 the Supreme Court dismissed her cassation appeal as manifestly ill founded. That decision was served on the applicant’s counsel on 23 December 2008.

On an unspecified date in 2006 the applicant’s former wife filed an action for division of matrimonial property with the Warsaw Mokotów District Court.

On 4 December 2007 the Warsaw Mokotów District Court, composed of an assessor, gave a decision. It ordered, in particular, that the former matrimonial home be transferred to the applicant’s former wife against payment of 217,436.21 Polish zlotys.

The applicant appealed. He claimed that the matrimonial home should have been transferred to him. The applicant alleged that the District Court had wrongly assessed the factual circumstances of the case and had misinterpreted the law. He further alleged a number of shortcomings in the assessment of the evidence.

On 3 June 2008 the Warsaw Regional Court upheld the first instance judgment. The applicant lodged a cassation appeal.

On 9 July 2009 the Supreme Court, sitting in private, rejected the applicant’s cassation appeal, finding that the value of his claim was below the statutory minimum threshold required in cases concerning the division of matrimonial property.

The applicant was employed as a deputy head of the Planning and Architecture Division of the Warsaw Centrum municipality. On 14 November 2002 he received a notice of immediate termination of his contract.

On 22 November 2002 the applicant filed an action for reinstatement with the Warsaw Śródmieście District Court. Subsequently, he brought an action for compensation for lost remuneration. On 13 November 2007 the Warsaw Śródmieście District Court, composed of an assessor and two lay judges, made an award for lost remuneration and compensation for unlawful termination of the applicant’s contract. However, it dismissed the applicant’s claim for reinstatement. The applicant appealed.

On 22 September 2008 the Warsaw Regional Court dismissed his appeal. The applicant lodged a cassation appeal. On 3 December 2009 the Supreme Court dismissed it. The judgment was served on the applicant on 15 February 2010.

The applicant was charged with robbery and a sexual offence involving a minor. On 14 August 2008 the Warsaw District Court, composed of an assessor, convicted the applicant as charged and sentenced him to seven years’ imprisonment. The applicant appealed. He argued, inter alia, that his case had not been examined by an independent court but by an assessor.

On 6 May 2009 the Warsaw Regional Court upheld the first instance judgment. It dismissed the argument in respect of the assessor by reference to the Constitutional Court’s judgment of 24 October 2007.

On 26 August 2009 the applicant’s legal aid counsel informed the Regional Court that he had found no grounds to lodge a cassation appeal in the case.

The relevant domestic law and practice regarding the status of assessors, including the landmark judgment of the Polish 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.

2. 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 for the Judiciary and the Prosecution Service abolished the institution of 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)).

Given their similar legal background, the Court decides that the eight applications should be joined pursuant to Rule 42 § 1 of the Rules of Court.

The applicants complained under Article 6 § 1 of the Convention about the lack of independence of the assessors who had examined their cases at the first instance level. They all relied on Article 6 § 1 of the Convention which, in so far as relevant, provides as follows:

“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law.”

By letters dated 20 May 2011 the Government informed the Court that they proposed to make unilateral declarations with a view to resolving the issue raised by the applications. They further requested the Court to strike out the applications in accordance with Article 37 of the Convention.

The terms of the declarations, which were identically worded in all cases, provided as follows:

“The Government hereby wish to express – by way of the unilateral declaration – their acknowledgement of the fact that the first instance court which dealt with the applicant’s case, sitting as an assessor, was not an independent tribunal, as required by Article 6 § 1 of the Convention.

In these circumstances, and having regard to the Court’s judgment of 30 November 2010 in the case of Henryk Urban and Ryszard Urban v. Poland in which it stated that the fact of acknowledging the violation of the applicants’ right to have their case heard by an independent tribunal, as guaranteed by Article 6 § 1 of the Convention, constitutes in itself sufficient just satisfaction for non pecuniary damage and that the State’s legal actions (i.e. adoption of the Law on the National School for the Judiciary and the Prosecution Service (Ustawa o Krajowej Szkole Sądownictwa i Prokuratury) on 23 January 2009) to remedy the shortcomings underlying the institution of assessors by abolishing it and introducing a new, comprehensive and centralised system for training judges effectively remedied the lack of independence of assessors within the Polish judiciary system, the Government submit that their unconditional acknowledgment of the fact that the applicant’s right under Article 6 § 1 of the Convention was restricted should be found by the European Court a sufficient redress for any damage suffered by the applicant as a result of his case being decided by an assessor before the first instance court.

The Government would respectfully suggest that the above declaration might be accepted by the Court as ‘any other reason’ justifying the striking out of the case of the Court’s list of cases, as referred to in Article 37 § 1 (c) of the Convention.”

Mr Taranowicz, Mr Wnęk and Mr Chrostowski submitted no comments on the Government’s unilateral declaration filed in their cases.

In a letter of 14 June 2011 Mr Komórek requested the Court to reject the Government’s unilateral declaration filed in his case. He argued that the admission by the Government of a violation of Article 6 § 1 did not constitute sufficient redress and that he should have received 34,351.21 Polish zlotys (PLN) in compensation for pecuniary damage and legal costs. Furthermore, his application was different from the case of Henryk Urban and Ryszard Urban v. Poland since he also complained about the excessive length of the proceedings and their unfairness. He pointed out that despite the Constitutional Court’s judgment of 24 October 2007 a subsequent judgment of the Brzozów District Court had been given by an assessor.

In a letter of 21 June 2011 Ms Winczowska objected to the striking out of her case on the basis of the Government’s unilateral declaration and requested the Court to continue the examination of her application. Having regard to the specific circumstances of her case and, in particular, the legal effects of the judgment given in her case by the assessor, the admission of a breach of Article 6 § 1 of the Convention alone was not sufficient. She submitted that the Court should give judgment on the merits of her case which would enable her to seek the reopening of the domestic proceedings. Furthermore, she sought PLN 106,743 in compensation for pecuniary damage and PLN 4,910 for legal costs.

In a letter of 11 June 2011 Ms Rudzka requested the Court to continue the examination of her case and sought EUR 50,000 in just satisfaction with a view to obtaining redress for the damage and humiliation suffered as a result of the breach of the Convention.

In a letter of 13 June 2011 Mr Rogaski appears to have objected to the striking out of his case on the basis of the unilateral declaration. He alleged that there had been a violation of Article 6 § 1 of the Convention in his case and claimed an unspecified amount in just satisfaction.

In a letter of 14 July 2011 Mr Kozłowski commented on the Government’s unilateral declaration. However, the President of the Section refused to admit his observations to the file since they were submitted outside the extended time limit allowed for that purpose.

The Court recalls that Article 37 of the Convention provides that it may at any stage of the proceedings decide to strike an application or part thereof out of its list of cases where the circumstances lead to one of the conclusions specified, under (a), (b) or (c) of paragraph 1 of that Article. Article 37 § 1 (c) enables the Court in particular to strike a case out of its list if:

“for any other reason established by the Court, it is no longer justified to continue the examination of the application”.

“However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires.”

It also recalls that in certain circumstances, it may strike out an application or part thereof under Article 37 § 1(c) on the basis of a unilateral declaration by a respondent Government even if the applicant wishes the examination of the case to be continued (see Martyna v. Poland (dec.), no. 72040/01, 15 January 2008; Gołubowski and 6 other applications v. Poland (dec.), nos. 21506/08, 22650/08, 34732/08, 41594/08, 55405/08, 38781/09 and 49198/09, 5 July 2011). To this end, the Court will examine carefully the declaration in the light of the principles emerging from its case law, in particular the Tahsin Acar judgment (Tahsin Acar v. Turkey (preliminary issue) [GC], no. 26307/95, § 75 77, ECHR 2003 VI).

The Court recalls that it has already dealt with the institution of Polish assessors from the standpoint of Article 6 of the Convention. In Henryk Urban and Ryszard Urban v. Poland (no. 23614/08, 30 November 2010), its leading judgment on the issue, the Court examined in detail 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, inter alia, 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 (...). 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.”

The Court went on to observe that, having regard to the principle of legal certainty and its own case law, there were no grounds which would require it to direct the re opening of the applicants’ case. However, it further noted that it would not exclude that it might take a different approach in a case where, for example, 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).

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. As noted above, the Court also had regard to the second element, namely the presence of specific circumstances in a particular case.

In the Urban case itself, the Court held that the finding of a violation constituted in itself sufficient just satisfaction for any non pecuniary damage which may have been sustained by the applicants (see Henryk Urban and Ryszard Urban, cited above, § 62). This is the Court’s general approach in assessors’ cases to the issue of just satisfaction unless the existence of specific circumstances is shown in a particular case.

“67. (...) 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 (...). 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.”

As regards costs and expenses, the Court found that there was no justification for awarding legal costs under Article 41 (Henryk Urban and Ryszard Urban, cited above, § 70).

In the present cases the Court cannot discern any circumstances which could give rise to an assumption that the Minister of Justice – Prosecutor General may have been taking an interest in the proceedings against or involving the applicants and therefore the issue in the present cases is limited to the institutional deficiency regarding the status of assessors. In the circumstances of the present cases the Court accepts that the Government are not required to offer any compensation to the applicants in light of the Henryk Urban and Ryszard Urban v. Poland judgment.

The Court has carefully examined the terms of the Government’s declarations. It observes that their declarations contain a clear acknowledgment of a breach of Article 6 § 1 of the Convention and refer to the adoption of the Law on the National School for the Judiciary and the Prosecution Service which abolished the institution of assessors (see relevant domestic law above). Having regard to the nature of the admissions contained in the Government’s declarations as well as the absence of any factors which could distinguish the present cases from the Court’s approach in the case of Henryk Urban and Ryszard Urban v. Poland the Court considers that it is no longer justified to continue the examination of the applications in so far as they concern complaints related to the lack of independence of assessors (Article 37 § 1(c); see, for the relevant principles Tahsin Acar v. Turkey (preliminary issue) [GC], cited above).

In light of all the above considerations, the Court is satisfied that respect for human rights as defined in the Convention and the Protocols thereto does not require it to continue the examination of the complaints at issue (Article 37 § 1 in fine).

Accordingly, it is appropriate to strike the applications out of the list in so far as they concern complaints related to the lack of independence of assessors.

Mr Taranowicz complained under Article 6 § 3 (d) about the refusal to call two witnesses for the defence. He also complained under Article 10 about his conviction for having interfered with the exercise of ML’s right to stand for election on account of the threat to publish information about his alleged collaboration with the communist security services. Mr Wnęk and Mr Komórek complained under Article 6 § 1 that the proceedings against them had been unfair and excessively lengthy. They further alleged a breach of Article 6 § 2. Ms Winczowska complained under Article 6 that her conviction had been disproportionate. She also alleged a breach of the right to work and pointed to the unconstitutionality of the relevant provisions of the Teacher’s Charter. Ms Rudzka protested her innocence and claimed that the domestic courts had erroneously assessed the facts and evidence. Mr Rogaski complained under Article 6 § 1 about the unfairness of the proceedings and about the unjustified refusal of the Supreme Court to hear his cassation appeal. He also made complaints under Article 8 and Article 1 of Protocol No. 1 with regard to the outcome of the proceedings. Mr Kozłowski contended that his case had not been heard within a reasonable time. He also alleged that the outcome of the proceedings had amounted to discrimination prohibited by Article 14.

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 no appearance of a violation of the rights and freedoms set out in the Convention or its Protocols arising from these complaints. It follows that these complaints are manifestly ill founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

Decides to strike the applications out of its list of cases in so far as they relate to the complaints concerning the lack of independence of assessors in accordance with Article 37 § 1 (c) of the Convention;

Declares the remainder of those applications inadmissible in so far as they raise other complaints.

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You are here: BAILII >> Databases >> European Court of Human Rights >> Waldemar TARANOWICZ v Poland - 45223/08 [2011] ECHR 1473 (6 September 2011) URL: http://www.bailii.org/eu/cases/ECHR/2011/1473.html Cite as: [2011] ECHR 1473