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FOURTH
SECTION
CASE OF RICHERT v. POLAND
(Application
no. 54809/07)
JUDGMENT
STRASBOURG
25 October
2011
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision
In the case of Richert v. Poland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas Bratza, President,
Lech
Garlicki,
Päivi Hirvelä,
George
Nicolaou,
Zdravka Kalaydjieva,
Nebojša
Vučinić,
Vincent A. De Gaetano, judges,
and
Lawrence Early,
Section Registrar,
Having
deliberated in private on 4 October 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 54809/07)
against the Republic of Poland lodged with the Court
under Article 34 of the Convention for the Protection of Human
Rights and Fundamental Freedoms (“the Convention”) by a
Polish national, Mr Andrzej Richert (“the applicant”), on
29 November 2007.
2. The
applicant, who had been granted legal aid, was represented by Mr M.
Romanowski, a lawyer practising in Gdańsk. The
Polish Government (“the Government”) were represented by
their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign
Affairs.
3. The
applicant alleged that the criminal case against him had not been
examined by a tribunal established by law.
- On
29 March 2010 the President of the
Fourth Section decided to give notice of the application to
the Government. It was also decided to rule on the
admissibility and merits of the application at the same time
(Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1972.
- On
an unspecified date in 2004 the Gdańsk Regional Prosecutor
lodged a bill of indictment against the applicant and other persons
with the Gdańsk Regional Court. The applicant was charged with
attempted murder committed in the context of organised crime.
- On
20 August 2004 the Criminal Division of the Gdańsk Regional
Court requested the President of that court for the secondment of a
judge from the district court, L.M., to the bench appointed to
examine the applicant’s case. The following dates for hearings
to be held were specified in that letter: 26 October, and 16 and
23 November 2004.
- By
a letter of the President of the Regional Court, dated 23 August
2004, the judge was seconded for the purpose of attending the three
hearings requested. The letter referred to the agreement of the board
of the assembly of the Regional Court’s judges to the
secondment which had been given on an unspecified date.
- Subsequently,
hearings in the applicant’s case were held on these first three
dates and then later on 14 December 2004, 25 January, 3 and
15 March, 14 and 19 April, 19 May, 17 June, 12 July
and 3 October 2005.
- By
a letter of 10 October 2005 the President of the Criminal Division of
the Regional Court requested the President of that court to clarify
the terms of Judge L.M.’s secondment, referring to certain
doubts as to the time frame within which it was valid. He requested
clarification on whether she had been seconded only for the three
dates specified in the secondment letter of 23 August 2004 or
for the whole examination of the case, until the first instance
judgment.
- In
his reply of 11 October 2005 the President of the Regional Court
stated that Judge L.M. had been seconded with effect from 26 October
2004 until a first-instance judgment was given in the case.
- On
12 October 2005 the President of the Criminal Division of the Gdańsk
Regional Court asked the President of that court to second Judge L.M.
to the case for a hearing to be held on 3 November 2005. His request
was granted by the President’s letter of 13 October 2005,
specifically referring to that date.
- On
26 October 2006 the President of the Criminal Division of the Gdańsk
Regional Court stated in a letter to the President of that court that
Judge L.M.’s original secondment had covered the hearings held
on: 26 October, 16 and 23 November 2003, 14 December 2004,
25 January, 3 and 15 March, 14 and 19 April, 19 May, 17
June, 12 July and 3 October 2005.
- Subsequently,
there was a change of practice concerning the secondment, in that
Judge L.M. was seconded by separate letters of 4 and 14 November
2005 for hearings to be held on 10 and 16 November 2005
respectively.
- On
the latter date the court gave a judgment and found the applicant
guilty of attempted murder.
- The
applicant appealed, complaining essentially about various aspects of
the admissibility and assessment of the evidence by the
first-instance court.
- On
11 October 2006 the Gdańsk Court of Appeal partly upheld and
partly amended the contested judgment.
- The
applicant lodged a cassation appeal with the Supreme Court.
- In
additional pleadings of 6 August 2007 he raised another ground for
appeal. He drew the Supreme Court’s attention to the doubts
which had arisen during the proceedings as to the correctness of the
procedure concerning the secondment of Judge L.M., its time frame and
its compliance with the requirements of section 77 of the Law on the
Structure of Courts of Law as to the procedural requirements that a
secondment had to meet. He argued that it was necessary to examine
whether his case had been examined by a tribunal established by law.
He indicated that he could not substantiate this ground with further
details based on a closer examination of the case file because it had
already been forwarded to the Supreme Court.
- By
a decision of 20 September 2007 the Supreme Court dismissed the
appeal. The operative part of the decision read:
“1) dismisses the cassation appeal as
manifestly ill-founded,
2) holds that the court costs of the
cassation proceedings be borne by the appellant.”
That
decision contained no written grounds.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Composition of criminal courts
- Article 180
§§ 1 and 2 of the Constitution reads:
“1. Judges shall not be removable.
2. The removal of a judge from office,
suspension from office, or the assigning of a judge to another bench
or position against his will may only occur by virtue of a court
judgment and only in situations prescribed in a statute. “
- Section 77(1)
of the Law on the Structure of Courts of Law (Prawo o ustroju
sądów powszechnych) provides that the Minister of
Justice may second a judge to carry out his or her duties in another
court. Furthermore, under subsection 8 of that section, the
president of a regional court is also empowered to second a judge of
a district court to sit on a bench of a regional court for a period
not longer than thirty days per year, provided that the board of the
regional court’s assembly of judges gives its consent.
Section
24 of that Law provides that no more than one judge seconded from
another court can sit on a bench of a court at any one time.
- The
Supreme Court has examined in a number of judgments the procedural
arrangements for the secondment of a judge to sit on the bench of
another court.
- In
its decision of 21 November 2001 (I KZP 28/01) it examined a
situation where two judges of a district court were promoted to a
regional court during proceedings pending before the district court.
They continued to participate in the proceedings until the
first-instance judgment was given. It held that it had been in breach
of section 24 of the Law on the Structure of Courts of Law and the
prohibition that only one judge seconded from another court could sit
on a bench (see paragraph 22 above). A district-court bench
comprising two judges promoted to a higher court during the
proceedings, if formal and individual decisions on their secondment
had been given, was not properly composed within the meaning of
Article 439 § 1 item 2 of the Code of Criminal
Procedure (see paragraph 30 below).
The
court observed that the procedural shortcomings listed in
Article 439 § 1 of the Code breached the fundamental
principles of a fair hearing, setting minimal procedural standards
for the rule of law in a democratic State. If such shortcomings
occurred, they always resulted in the judgment on the merits of the
case being quashed, regardless of whether they had any influence on
the substantive outcome of the proceedings and even where they had
not been raised by the appellant. Certain legal writers were of the
view that the legislator had put in operation a presumption that such
shortcomings always had an impact on the merits of a case.
The
court observed that one of the fundamental principles of the
administration of justice was that a judge was to carry out his or
her function in a given court determined in the nomination act issued
by the President. However, the laws governing judicial organisation
allowed for judges to be assigned to another court with a view to
carrying out their judicial duties for limited periods of time and
with their consent. For a judge to be able to sit on a bench of
another court, at either a higher, lower or the same level of
jurisdiction, a formal decision on secondment was necessary. Such a
decision was not of a merely organisational character; it conferred a
judicial role on a judge sitting on that bench.
- In
a resolution of 26 September 2002 (I KZP 28/2002) the Supreme Court
held that a judge could be seconded to sit on a bench of another
court either for a period of thirty consecutive days in one year, or
for thirty non-consecutive days, for example, the dates of hearings.
It noted that there were discrepancies in the practice. Certain
presidents of the courts were of the view that only the first
approach was correct, while others maintained that it was also
acceptable to second judges for successive hearings in a case
examined by another court, held on non-consecutive days if their
number did not exceed thirty per year. The court held that it was
improper to second a judge without concrete dates indicated in the
secondment decision, or merely for the examination of a specified
case, if such a secondment did not refer to concrete dates.
- In
its judgment of 1 October 2002 (V KK 114/02) the Supreme Court
examined a situation where a judge had obtained secondment for a
specified period to sit on a bench of another court and had continued
to do so after that period had ended, in the absence of a new
decision on his secondment. It held that only a decision to second a
judge to another court made it possible for him or her to sit on a
bench of another court. In the absence of such a decision the
composition of the court had been incorrect, within the meaning of
Article 439 of the Code of Criminal Procedure. This procedural
shortcoming amounted to a flagrant breach of the minimum standards of
a fair hearing (“rażąca obraza minimalnego
standardu prawidłowego postępowania”). The court
referred to the resolution of 21 November 2001 (see paragraph 24
above).
- In
a judgment of 22 August 2007 (II KK 197/07) the Supreme Court held
that the assignment of a judge to another bench did not comply with
the applicable legal requirements if the local board of the assembly
of judges had given only a blanket agreement for all judges of that
court to be seconded to other courts. That agreement had to be given
on each and every occasion in respect of an individual judge.
- In
an interlocutory decision of 19 September 2006 (III KO 21/06) the
Supreme Court held that a decision on a judge’s secondment had
not been issued correctly if it lacked an indication of the concrete
dates of hearings or other measures in which a seconded judge was to
participate. It further noted that such a shortcoming did not render
the proceedings void within the meaning of Article 439 of the Code of
Criminal Procedure. The court reiterated that a judge could not be
assigned to a bench of another court for more than thirty days during
one year.
B. Grounds for a cassation appeal
- Under
the 1997 Code of Criminal Procedure (“the Code”), which
entered into force on 1 September 1998, a party to criminal
proceedings can lodge an appeal with the Supreme Court against any
final decision of an appellate court which had terminated criminal
proceedings. The relevant part of Article 523 § 1 of
the Code provides:
“A cassation appeal may be lodged only on the
grounds referred to in Article 439 [these include a number of
fundamental procedural irregularities, such as incorrect composition
of the trial court; lack of legal assistance in cases where such
assistance was compulsory; breach of the rules governing jurisdiction
in criminal matters; trying a person in absentia in cases
where his presence was obligatory and thus depriving him of an
opportunity to defend himself, etc.] or on the ground of another
flagrant breach of law provided that the judicial decision in
question was affected as a result of that breach. A cassation appeal
shall not lie against the severity of the penalty imposed
(niewspółmierności kary).”
- Article
439 of the Code, in so far as relevant, reads:
“The appellate court shall, regardless of the
scope of the appeal and the grounds raised by the party and
regardless of whether the procedural shortcoming has had any impact
on the substance of a decision, set a decision aside if: ...
(2) the composition of the court was improper;”
Under
Article 518 of the Code, Article 439 is applicable mutatis
mutandis in the cassation proceedings.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that his criminal case had not been decided by a
“tribunal established by law” within the meaning of
Article 6 § 1 of the Convention which reads as
follows:
“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 (a) of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
- The
applicant argued that Judge L.M. had been
assigned to the case contrary to the provisions of domestic law.
- The
applicant submitted that on 23 August 2004 that judge had been
seconded to sit on the bench of the Regional Court for three
hearings. Subsequently, another secondment had been authorised in
October 2005, but only with retrospective effect for the period
between 24 November 2004, when the initial secondment had expired,
and 3 October 2005.
- The
applicant complained that the proceedings had been unfair in that the
Supreme Court had failed to state the reasons for the dismissal of
his cassation appeal. As a result, it had failed to explain why it
had dismissed his argument concerning the allegedly unlawful
composition of the first-instance court. He pointed to the risk of
arbitrariness in this respect.
- The
Government submitted that the composition of the Regional Court had
been in full compliance with the domestic law. The procedure allowing
for the secondment of judges was regulated at a statutory level by
the Law on the Structure of Courts of Law as required by the Court’s
case-law. Its provisions specified precise conditions and situations
where a judge could be seconded to sit on a bench of another court.
That period could not exceed thirty days per year, provided that the
judge agreed and that the board of the assembly of judges had given
its assent to the secondment. In the applicant’s case all these
requirements had been met. Judge L.M. had been seconded by the
President of the Regional Court with the board’s consent. The
period of her secondment had not exceeded the period of thirty days
set by that Law. Any irregularities consisting in the absence of the
President’s decision on secondment issued prior to the hearings
held between 14 December 2004 and 3 October 2005 had not, in the
Government’s view, invalidated that secondment.
- The
Government referred to the Court’s decision in the case of
Iwańczuk v. Poland ((dec.) no. 39279/05, 17 November
2009). The Court had declared that case inadmissible, having regard,
inter alia, to the fact that the applicant had failed to
adduce any evidence that the assignment of a judge from another bench
had cast any doubt on that judge’s impartiality or
independence, factors closely related to the notion of a “tribunal
established by law” and relevant also for the assessment of the
fairness of the proceedings.
- The
Government argued that the first-instance judgment in the present
case had been challenged by the applicant by way of an appeal and
that his appeal had been examined by the appellate court. Hence, the
applicant’s guilt had ultimately been determined by the latter
court, the composition of which had not been contested by the
applicant.
- They
argued that the applicant had been aware that Judge L.M. had been
seconded from the lower court for the purposes of his case. The
courts had not been under any legal obligation to attach the
secondment documents to the case file.
- The
Government further stated that they wished to refrain from making
submissions concerning the applicant’s argument that the
Supreme Court had failed to give sufficient grounds for its decision
by which it had dismissed the applicant’s cassation appeal.
- The Court reiterates that the expression “a
tribunal established by law” reflects the principle of the rule
of law, which is inherent in the system of protection established by
the Convention and its Protocols. “Law”, within the
meaning of Article 6 § 1, comprises in particular the
legislation on the establishment and competence of judicial organs
(see, inter alia, Lavents v. Latvia, no. 58442/00,
§ 114, 28 November 2002). Accordingly, if a tribunal
does not have jurisdiction to try a defendant in accordance with the
provisions applicable under domestic law, it is not “established
by law” within the meaning of Article 6 § 1
(compare Coëme and Others v. Belgium, nos. 32492/96,
32547/96, 32548/96, 33209/96 and 33210/96, §§ 99 and
107-08, ECHR 2000-VII).
- The
object of the term “established by law” in Article 6 of
the Convention is to ensure that the judicial organisation in a
democratic society does not depend on the discretion of the
executive, but that it is regulated by law emanating from parliament
(see Coëme and Others, cited above, § 98, and Gurov
v. Moldova, no. 36455/02, § 34, 11 July
2006).
- The
phrase “established by law” covers not only the legal
basis for the very existence of a “tribunal” but also the
composition of the bench in each case (see Buscarini v. San
Marino (dec.), no. 31657/96, 4 May 2000, and Posokhov
v. Russia, no. 63486/00, § 39, ECHR
2003 IV). A tribunal established by law must satisfy a series of
conditions such as the independence of its members and the length of
their terms of office, impartiality and the existence of procedural
safeguards (see Coëme and Others, cited above,
§ 99).
- The
Court notes that under the provisions of the Law on the Structure of
Courts of Law it was, and remains, possible to assign judges to sit
on benches in courts other than their own. However, certain legal
requirements have to be met in order to safeguard judicial
independence, to prevent the composition of benches being manipulated
in any way and to guarantee a fair hearing. Presidents of courts are
empowered to second a judge, provided that he or she agrees thereto
and that the board of the assembly of judges of that court gives its
assent. Moreover, the applicable provision of the Law on the
Structure of Courts limits the period for which such an assignment
can be made to thirty days per year.
- Certain
difficulties and discrepancies in judicial practice arose in
connection with the interpretation of the term “tribunal
established by law” in the context of judges being assigned to
other courts to examine criminal cases. The Supreme Court
acknowledged the existence of these difficulties in its resolution of
26 September 2002. It considered it necessary to adopt a resolution
clarifying certain procedural aspects of judicial secondments. It
held that the practice by certain presidents of courts of seconding
judges “for the examination of a particular case”,
without setting precise temporal limits, was inappropriate. The
Supreme Court held that the temporal limitation was of significant
importance as it served the purposes of preserving judicial
independence. It held that the term “for thirty days”
could be understood as either thirty consecutive days or thirty days
of hearings within one year.
- Hence,
the Court notes that the issue was sufficiently important to prompt
the Supreme Court to issue a resolution, a special form of judicial
decision given by that court only where there were discrepancies in
judicial practice, with a view to clarifying them, in the interests
of judicial certainty and harmonisation of case-law.
- The
same approach was reiterated in its decision of 19 September 2006
(see paragraph 28 above). In another decision, the Supreme Court
stressed the importance of an individual agreement of the board of
the assembly of judges for a judicial secondment (see paragraph 27
above). In a number of cases that court held that the absence of a
formal decision on a judge’s assignment rendered the
proceedings void. In another decision it was stated that the
assignment should indicate either the dates of hearings or the
precise dates of other measures, if a judge was seconded for purposes
other than a hearing (see paragraph 28 above). Hence, the procedural
conditions of judicial secondments were determined by the Law on the
Structure of Courts of Law and further specified by the case-law of
the Supreme Court.
- Turning
to the circumstances of the present case, the Court observes that the
President of the Regional Court seconded Judge L.M., by his letter of
23 August 2004, to sit on the bench of the Regional Court appointed
to examine the applicant’s case. However, only three hearing
dates were specified in that letter: 26 October, and 16 and 23
November 2004. He referred to the agreement to her secondment given
by the board of the assembly of judges. Hence, it is not open to
doubt that in respect of these three hearings all the requirements
were met: the formal assignment, the consent of the board and precise
dates indicated in the assignment. Further, it was common ground
between the parties that Judge L.M. had not objected to her
assignment to the applicant’s case.
- However,
later on, ten hearings in the applicant’s case were held in
2005 without any specific document allowing for that judge’s
assignment to the bench of the Regional Court. A year later, in
October 2005, doubts arose as to whether the composition of the
first-instance court had complied with the provisions of the domestic
law. These doubts were expressed in the letter of the President of
the Criminal Division of the Regional Court of 10 October 2005.
He asked the President of that court to clarify the terms of the
judge’s secondment. In his reply, the President stated that the
judge had been seconded from 26 October 2004 until a first-instance
judgment was to be given in the case. Subsequently, in a letter of 26
October 2005 the President of the Criminal Division told the
President of the Regional Court that Judge L.M.’s secondment
had covered the hearings held on: 26 October, 16 and 23
November 2003, 14 December 2004, 25 January, 3 and 15 March,
14 and 19 April, 19 May, 17 June, 12 July and 3 October 2005.
- The
Court observes that the President’s letter of 26 October 2005
was meant to authorise the secondment with retrospective effect.
However, no arguments have been submitted to the Court to show that
under the applicable provisions of the domestic law, as interpreted
by the Polish courts, the retrospective authorisation of a secondment
request was one of the lawful procedural methods for assigning judges
to other benches.
- The Court notes the Government’s argument that
the first-instance judgment was challenged by way of appeal and that
the applicant has not contended that he did not receive a fair
hearing before the court of appeal. It further observes that the
applicant did not in fact raise the matter of Judge L.M.s secondment
before the court of appeal. On the other hand, he did bring that
complaint to the attention of the Supreme Court in the context of the
cassation proceedings, referring to doubts which had arisen during
the proceedings as to whether the assignment of Judge L.M. to the
first-instance bench sitting in his case had complied with the
applicable legal requirements. It recalls in this connection that the
possibility certainly exists that a higher or the highest court
might, in some circumstances, make reparation for defects including
defects with respect to the independence and impartiality of the
lower court (see De Cubber v. Belgium, 26 October 1984,
§ 33, Series A no. 86; Kyprianou v. Cyprus [GC],
no. 73797/01, § 134, ECHR 2005 XIII; and Henryk
Urban and Ryszard Urban v. Poland, no. 23614/08,
§ 54, 30 November 2010). In the instant case, the
cassation court had the power to quash the applicant’s
conviction and to order a re-trial, even if the matter of the
composition of the first-instance bench had not been submitted to the
court of appeal for examination.
- It
has not been argued, let alone shown, that that ground of the
cassation appeal was so clearly unfounded that it was unnecessary for
the Supreme Court to consider it. The Court notes that the
correspondence between the President of the Criminal Division and the
President of the Regional Court shows that they were uncertain about
whether in the applicant’s case the secondment of Judge L.M.
had respected the applicable procedural requirements. Hence, it
cannot be said that the applicant’s arguments advanced in his
pleadings in support of his cassation appeal manifestly lacked any
factual or legal basis.
- The
Court further notes that under the applicable provisions of the
domestic law the incorrect composition of a tribunal was one of the
grounds to be examined by all appellate courts, including in the
context of cassation proceedings, regardless of whether the appellant
raised that ground in the appeal. Moreover, such a shortcoming
rendered the proceedings void (see paragraph 29 above).
- Accordingly,
since the issue of the composition of the court would have been
decisive for the outcome of the case, the Supreme Court should have
addressed the submission in its judgment. Instead, it dismissed that
appeal merely by way of a formulaic statement, habitually used in the
context of criminal cassation proceedings for the purposes of
disposing of manifestly ill-founded appeals.
- In
this connection, the Court reiterates the general principle adopted
in its case-law according to which it is in the first place for the
national courts themselves to interpret the provisions of domestic
law. The Court’s jurisdiction to review the correctness of the
judicial application of the domestic law is limited (see, among many
other authorities, Bugajny and Others v. Poland, no. 22531/05,
§§ 65-66, 6 November 2007; Urban, cited above, §
51). However, in the absence of an authoritative determination by the
Polish judicial authority that the retrospective authorisation of a
judge’s assignment to the examination of a criminal case was a
method compliant with the domestic law, the Court does not have any
basis on which it could accept that the composition of the
first-instance court between 27 October 2004 and 11 October 2005
complied with the applicable requirements of the domestic law.
- Cumulatively,
these circumstances do not permit the Court to conclude that the
Gdańsk Regional Court, which heard the applicant’s case
from 24 November 2004 to 3 October 2005, could be regarded as a
“tribunal established by law”.
- There
has accordingly been a violation of Article 6 § 1 of the
Convention.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant complained, relying on Article 6 of the Convention, that
the proceedings had been unfair in that the courts had wrongly
assessed evidence, erred in establishing the facts of the case and
incorrectly applied the applicable domestic law.
- However,
the Court reiterates that, under Article 19
of the Convention, its duty is to ensure the observance of the
engagements undertaken by the Contracting Parties to the Convention.
In particular, it is not its function to deal with errors of fact or
law allegedly committed by a national court unless and in so far as
they may have infringed rights and freedoms protected by the
Convention. Moreover, while Article 6 of the Convention guarantees
the right to a fair hearing, it does not lay down any rules on the
admissibility of evidence or the way it should be assessed, which are
therefore primarily matters for regulation by national law and the
national courts (see García Ruiz v. Spain [GC],
no. 30544/96, § 28, ECHR 1999-I, with further
references).
- In
the present case the applicant’s complaints are limited to
challenging the result of the proceedings. The applicant does not
contend that the judges who sat in his case (including Judge L.M.)
lacked independence or impartiality. Assessing the circumstances of
the case as a whole, the Court finds no indication that any decisions
on the admissibility and assessment of the evidence were in breach of
the applicant’s right to a fair hearing.
- 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
applicant claimed 54,000 euros (EUR) in respect
of pecuniary damage, consisting in loss of earnings throughout the
period when he was serving his prison sentence, and EUR 100,000 for
non-pecuniary damage.
- The
Government contested the applicant’s claims.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim.
- Moreover, with regard to the applicant’s claim
for non-pecuniary damage, the Court considers that the finding of a
violation constitutes in itself sufficient just satisfaction.
B. Costs and expenses
- The
applicant also claimed EUR 1,500 for the costs
and expenses incurred before the domestic courts and before the
Court.
- The
Government contested that claim.
- The
Court notes that the applicant did not submit bills or other
documents to demonstrate the costs borne in connection with the
domestic proceedings or with the proceedings before the Court. It
considers the amount paid to the applicant by way of legal aid for
the proceedings before the Court quite adequate in the circumstances.
It declines to award any further sum.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the application admissible as regards
the complaint that the case was not examined by a “tribunal
established by law” and the remainder of the application
inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention on account of the fact that the
applicant was convicted by a tribunal which was not “established
by law”;
- Holds that the finding of violation is
sufficient just
satisfaction for any
non-pecuniary damage suffered by the applicant;
- Dismisses the remainder of
the applicant’s claim for just
satisfaction.
Done in English, and notified in writing on 25 October 2011, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas
Bratza Registrar President
