Judgment (Merits and Just Satisfaction) of European Court of Human Rights, October 25, 2011 (case CASE OF RICHERT v. POLAND)

Defense:Poland
Resolution Date:October 25, 2011
 
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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

  1. 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.

  4. 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

    1. THE CIRCUMSTANCES OF THE CASE

  5. The applicant was born in 1972.

  6. 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.

  7. 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.

  8. 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.

  9. 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.

  10. 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.

  11. 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.

  12. 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.

  13. 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.

  14. 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.

  15. On the latter date the court gave a judgment and found the applicant guilty of attempted murder.

  16. The applicant appealed, complaining essentially about various aspects of the admissibility and assessment of the evidence by the first-instance court.

  17. On 11 October 2006 the Gdańsk Court of Appeal partly upheld and partly amended the contested judgment.

  18. The applicant lodged a cassation appeal with the Supreme Court.

  19. 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.

  20. 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.

    1. RELEVANT DOMESTIC LAW AND PRACTICE

    1. Composition of criminal courts

  21. Article 180 §§ 1 and 2 of the Constitution reads:

    "1. Judges shall not be removable.

  22. 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. "

  23. 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.

  24. 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.

  25. 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...

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