1 July 2009
FOURTH SECTION
Application no. 860/08
by Krzysztof WERSEL
against Poland
lodged on 10 December 2007
STATEMENT OF FACTS
THE FACTS
The applicant, Mr Krzysztof Wersel, is a Polish national who was born in 1970 and lives in Tychy.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
In October 2000 the prosecution filed a bill of indictment against the applicant with the Gliwice District Court. He was charged with attempted insurance fraud.
On 14 November 2006 the Gliwice District Court, sitting as an assessor (asesor) and two lay judges (ławnicy), convicted the applicant as charged and sentenced him to thirty months’ imprisonment.
The applicant appealed. On 2 July 2007 he supplemented his appeal, arguing that adjudication by an assessor in his case was incompatible with the Constitution.
On 17 July 2007 the Gliwice Regional Court dismissed his appeal. In respect of his objection to the composition of the first-instance court, it considered it unfounded. The Regional Court observed that the statutory provision authorising the assessors to adjudicate benefited from the presumption of constitutionality as long as it was not repealed by the Constitutional Court.
The applicant filed a cassation appeal. On 12 March 2008 the Supreme Court dismissed his cassation appeal as manifestly ill-founded.
B. Relevant domestic law and practice
1. Constitutional provisions
The Constitution was adopted by the National Assembly on 2 April 1997 and entered into force on 17 October 1997.
Article 45 § 1 of the Constitution reads:
“Everyone shall have the right to a fair and public hearing of his case, without undue delay, before a competent, impartial and independent court.”
Article 190 of the Constitution, regarding the effects of judgments of the Constitutional Court, provides, in so far as relevant:
“1. Judgments of the Constitutional Court shall be universally binding and final.
2. Judgments of the Constitutional Court, ... shall be published without delay.
3. A judgment of the Constitutional Court shall take effect from the day of its publication; however, the Constitutional Court may specify another date for the end of the binding force of a normative act. Such a time-limit may not exceed eighteen months in relation to a statute or twelve months in relation to any other normative act. ...
4. A judgment of the Constitutional Court on non-conformity with the Constitution, an international agreement or statute, of a normative act on the basis of which a final and enforceable judicial decision or a final administrative decision ... is given, shall be a basis for reopening of the proceedings or for quashing the decision ... in a manner and on principles specified in provisions applicable to the given proceedings.”
2. The Law on the Structure of Courts of Law
The Law of 27 July 2001 (as amended) on the Structure of Courts of Law (Prawo o ustroju sądów powszechnych; “the 2001 Act”) sets out comprehensively all matters related to organisation and administration of courts of general jurisdiction, status of judges and their self-governing bodies, position of assessors (asesor) and trainee judges, court employees and officers and lay judges.
The 2001 Act stipulates the necessary requirements that have to be fulfilled to assume the office of a district court judge. A candidate for such office is required, among other conditions, to complete a judge’s or prosecutor’s training (aplikacja) and then pass the relevant examination. Subsequently, s/he has to work a minimum of three years as an assessor in a district court.
Sections 134-136 of the 2001 Act regulate the position of assessors. They provide, in so far, as relevant:
Section 134
“§ 1. The Minister of Justice may appoint as an assessor a person who has completed a judge’s or prosecutor’s training and passed the judge’s or prosecutor’s examination and who meets the requirements specified in section 61 § 1 (1-4).
[...]
§ 5. The Minister of Justice may discharge an assessor having given him notice and subject to approval by the board (of judges) of a regional court.”
Section 135
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 s/he remains under the supervision of a judge designated to carry out the function of a consulting judge.
[...]”
3. Judgment of the Constitutional Court of 24 October 2007, case no. SK 7/06
The proceedings before the Constitutional Court were initiated by two constitutional complaints. The first of them was made by J.W., who complained that his detention had been imposed by an assessor. The second complaint was lodged by a company, AD Drągowski S.A., which complained that a prosecutor’s decision discontinuing a criminal investigation had been reviewed by an assessor. Both complainants alleged incompatibility with the Constitution of certain provisions of the 2001 Act which govern the position of the assessor.
The Constitutional Court, sitting in full composition, held that section 135 § 1 of the 2001 Act was incompatible with Article 45 of the Constitution, providing for the right to have one’s case examined by an impartial and independent court. It found that the vesting of judicial powers in assessors by the Minister of Justice (representing the executive) was unconstitutional since the assessors did not enjoy the necessary guarantees of independence which were required of judges.
As a preliminary point the Constitutional Court considered that the constitutional requirements of independence were equally relevant for all courts, regardless of their level and scope of jurisdiction. It noted that the lack of independence of the first-instance court would amount to a breach of Article 45 of the Constitution even when the second-instance court examining an appeal complied with the requirements of independence.
The Constitutional Court gave, inter alia, the following reasons:
“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/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 (...) amount thus 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/her dismissal, including even during the period in which an assessor exercises judicial powers. Even assuming the constitutional admissibility of the institution of temporary vesting in an assessor of those powers within the jurisdictional and temporal limits specified by a statute, then the rudimentary aspect of the principle of independence, which must be adhered to also in this case, requires that an assessor can be removed 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 a dismissal is justified or not in a given situation. Consequently, there are no substantive guarantees and no adequate procedural guarantees which would indicate that the assessor’s dismissal is excluded on the ground of the content of his/her rulings. (...)”
The Constitutional Court also found that:
“5.13. The protection of the arbiter’s internal independence from the 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 this body was competent to approve the vesting of judicial powers in him/her and to dismiss him/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.
The Constitutional Court ordered that the unconstitutional provision should be repealed eighteen months after the promulgation of the judgment[1]. 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. The Constitutional Court observed that it would be disproportionate to allow challenges to final rulings on the ground of unconstitutionality of the provisions regulating the composition of the organs which had given those rulings. It considered that such unconstitutionality did not have to amount to unconstitutionality in respect of the content of a ruling or the procedure employed with a view to reaching it.
4. The Law on the National School for the Judiciary and the Prosecution Service
On 23 January 2009 the parliament enacted the Law on the National School for the Judiciary and the Prosecution Service (Ustawa o Krajowej Szkole Sądownictwa i Prokuratury) which entered into force on 4 March 2009. The law establishes a comprehensive and centralised institution responsible for training of (future) judges and prosecutors.
In response to the Constitutional Court’s judgment of 24 October 2007 the Law on the National School abolished the institution of judicial assessors as provided by the Law of 27 July 2001 on the Structure of Courts of Law (section 60 (12)). Furthermore, it specifically provided that as from 5 May 2009 assessors ceased to be authorised to exercise judicial powers (section 68 (1)).
COMPLAINT
The applicant alleges a breach of Article 6 § 1 of the Convention, since his case was adjudicated by an assessor who was not independent. He further complains that he could not challenge the assessor’s ruling under Article 190 § 4 of the Constitution, following the Constitutional Court’s judgment of 24 October 2007.
QUESTIONS TO THE PARTIES
1. Was the first-instance court which dealt with the applicant’s case independent, as required by Article 6 § 1 of the Convention? Reference is made to the Constitutional Court’s judgment of 24 October 2007 (case no. SK 7/06).
2. Has the applicant exhausted all effective domestic remedies, as required by Article 35 § 1 of the Convention? In particular, may it be considered that the issue of the alleged lack of independence of the first‑instance court was cured on appeal following the review of the case by the second-instance court?
[1] The operative part of the Constitutional Court’s judgment was published on 5 November 2007 in the Journal of Laws no. 204, item 1482.
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