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FOURTH
SECTION
DECISION
Application no.
12285/09
Anna DRYZEK
against Poland
The
European Court of Human Rights (Fourth Section), sitting on 20 March
2012 as a Chamber composed of:
David Thór Björgvinsson,
President,
Lech Garlicki,
Päivi
Hirvelä,
George Nicolaou,
Ledi
Bianku,
Zdravka Kalaydjieva,
Vincent A. De
Gaetano, judges,
and Lawrence Early,
Section Registrar,
Having
regard to the observations submitted by the respondent Government and
the observations in reply submitted by the applicant,
Having
deliberated, decides as follows:
THE FACTS
- The
applicant, Ms Anna Dryzek, is a Polish national who was born in 1962
and lives in Shrewsbury. She is represented before the Court by
Ms E. Kanonowicz, a lawyer practising in Wrocław. The
Polish Government (“the Government”) were represented by
their Agent, Mr J. Wołąsiewicz of the Ministry of
Foreign Affairs.
A. The circumstances of the case
- The
facts of the case, as submitted by the parties, may be summarised as
follows.
- In
May 2007 B.S. and A.S. filed a claim against the applicant with the
Wrocław Regional Court. The claimants sought a judgment
stipulating that the applicant was obliged to transfer to them the
right of perpetual use of a plot of land and the title to a
building situated on it. They alleged that the applicant had breached
the preliminary contract on the sale of the above real estate.
- The case was heard by a single-judge bench composed of
a district court judge, P.G.-M., who had been seconded to the Wrocław
Regional Court. Judge P.G.-M. acted as the president of the bench.
- On
30 October 2007 the Wrocław Regional Court found against the
applicant.
- The
applicant, who was represented by a lawyer, lodged a wide ranging
appeal against the judgment. She alleged that the first instance
court had committed a number of errors of law and fact when
adjudicating the case. The applicant also claimed that the
proceedings before the Wrocław Regional Court had been invalid
in law on account of the unlawful composition of that court. She
argued, relying on section 46 of the Courts Organisation Act (Prawo
o ustroju sądów powszechnych),
that a district judge seconded to the regional court could not
preside over cases heard by a single judge in that court unless
specifically authorised by the Minister of Justice in accordance with
this provision. The applicant requested the Court of Appeal to review
whether Judge P.G.-M. had been duly seconded to the Regional Court
and whether she had been authorised to preside over the bench.
- On
21 December 2007 the Wrocław Court of Appeal dismissed
the applicant’s appeal as ill-founded. It examined first
the applicant’s plea of nullity of the proceedings and found in
this respect as follows:
“Responding to the first and most far-reaching
allegation of nullity of the proceedings on account of incorrect
secondment of the judge adjudicating at the first instance to
exercise her functions in a different court, it should be noted that
the Supreme Court resolution of 14 November 2007 delivered by the
full bench [of that court] determined that the statutory competence
of the Minister of Justice to second judges to carry out their
functions in another court could be exercised in the Minister’s
stead or on his authorisation by the Secretary or the Under-Secretary
of State.
In view of those reasons there are no grounds to quash
the judgment or to repeal the proceedings on account of nullity,
since the condition stipulated in Article 379 (4) of the Code of
Civil Procedure has not been met.”
- The
applicant lodged a wide-ranging cassation appeal. She claimed that
the Court of Appeal had not duly examined her argument about the
unlawful composition of the Regional Court since the bench of the
first instance court had been composed of one district judge
seconded to the Regional Court. Further, the Court of Appeal, despite
the applicant’s request, had failed to examine whether the
composition of the first-instance court had been in compliance with
sections 46 § 1 and 77 § 1 of the Courts Organisation Act,
namely whether Judge P.G.-M. had been duly seconded and authorised to
preside over hearings. The Court of Appeal responded to only part of
the argument based on section 77 § 1 of the Courts Organisation
Act, by stating that the Minister’s competence to second judges
could have been exercised by the Secretary or the Under-Secretary of
State. If a judgment was given by a district judge seconded
to the regional court without the authorisation to preside over
hearings, or if that judge was seconded by the Secretary
or Under-Secretary of State where the latter had not been
expressly so authorised by the Minister of Justice, then the
proceedings would have been invalid in law. In this respect the
applicant relied on Article 45 § 1 of the
Constitution and Article 6 § 1 of the Convention.
- She also argued that the record of the hearing before
the first instance court did not include information about the
date and the manner of secondment of Judge P.G.-M. or whether
she had been authorised to preside over hearings. In the absence of
specific information in the case file as regards the date of
secondment, its scope and the seconding authority, the applicant was
unable to effectively challenge the legality of the composition of
the bench without being provided with the relevant information by the
court. Referring to the Supreme Court resolution of 14 November
2007, the applicant argued that secondment of judges by the
Secretary or the Under Secretary of State could be validly
effected only if the Minister of Justice had specifically authorised
them to exercise those competences at a given time. She
submitted that the Court of Appeal had been required to review that
issue in respect of the secondment of Judge P.G.-M., since the
irregular composition of the court amounted to nullity of the
proceedings.
- She
also alleged that the Court of Appeal had applied the substantive
civil law erroneously in her case.
- On
14 November 2008 the Supreme Court refused to entertain the
applicant’s cassation appeal. That decision was taken by a
single judge sitting in camera. The Supreme Court held as follows:
“...The defendant lodged a cassation appeal in
which she requested that the judgment under appeal be quashed and the
case remitted to the court of second instance for re-examination. She
indicated as the grounds for admission of the appeal for examination
that the proceedings were invalid in law, and stated that there was
a significant legal issue in the case [and] that the cassation
appeal was manifestly well-founded.
The requirement, specified in Article 398 (4) § 1
(3) of the Code of Civil Procedure, that any request for a cassation
appeal to be examined should be reasoned, has been met where the
claimant demonstrates that there is a significant legal issue in the
case, [or] there is a need for the interpretation of legal provisions
raising serious doubts or causing discrepancies in the courts’
case-law, [or] when the proceedings are invalid in law, or when the
cassation appeal is manifestly well-founded. The objective of the
requirement stipulated in Article 398 (4) § 1 (3) of the Code of
Civil Procedure can then be achieved only by relying on and
justifying the existence of grounds which could constitute a basis
for assessment of the admissibility of the cassation appeal. The
Supreme Court may base its decision whether to hear a cassation
appeal on those grounds alone.
In the present cassation appeal the request for its
admission for examination was based on the grounds specified in
Article 398 (9) § 1 (1, 3 and 4) of the Code of Civil Procedure.
Detailed analysis of the reasons for the request for admission of the
cassation appeal for examination does not permit a finding that the
cited legal issue is in fact present in the case or that the
cassation appeal is manifestly well-founded. There is no nullity of
the proceedings in the case, either on the grounds indicated in the
cassation appeal or on account of other grounds the Supreme Court
takes into consideration – within the limits of the cassation
appeal – of its own motion (Article 398 (13) § 1 of
the Code of Civil Procedure.”
B. Relevant domestic law and practice
1. Constitutional provisions
- 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 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
statute.”
2. The Courts Organisation Act
- The Act of 27 July 2001 (as amended) on the
Organisation of Courts (Prawo o ustroju sądów
powszechnych; hereinafter “the Courts Organisation
Act”) sets out comprehensively all matters related
to the organisation and administration of courts of general
jurisdiction. At the relevant time section 77 § 1 of the
Courts Organisation Act provided, in so far as relevant:
“The Minister of Justice may second a judge, with
his consent, to exercise judicial functions or administrative duties
in another court ... for a limited period of time not extending two
years or for unlimited period.”
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 (the so-called “small
secondment”).
- Section 46 § 1 of the Courts Organisation
Act stipulates that a bench of a court may be composed of only one
judge [seconded] from a different court. Furthermore, a judge of a
lower court may not act as the president of the bench. However, the
Minister of Justice may authorise a district judge who is seconded to
a regional court to preside over cases heard by the latter court at
the first instance in a bench composed of one judge or one judge and
two lay judges.
3. Resolution of the Supreme Court of 14 November 2007
(BSA I 4110 5/07)
- Discrepancies
arose in the case-law of the Supreme Court as regards whether the
competence of the Minister of Justice under section 77 § 1
of the Courts Organisation Act to second a judge to a different
court from that to which he was normally assigned could be
delegated to the Secretary or the Under Secretary of State in
that ministry. The President of the Supreme Court requested the full
bench of that court (judges of all chambers sitting
jointly) to adopt a resolution with a view to harmonising the
case-law.
- On
14 November 2007 the Supreme Court, sitting as a full bench
(eighty-one judges), issued a resolution. It held that the statutory
competence of the Minister of Justice to second a judge to exercise
judicial functions in another court could be delegated to the
Secretary or Under Secretary of State under the relevant
provisions of the Council of Ministers Act (see Wieczorek v.
Poland (dec.), no. 31264/04, 18 May 2010).
- The Supreme Court observed that the laws governing
judicial organisation allowed judges to exercise judicial functions
in a different court from the one indicated in their nomination act.
It found that secondment of a judge, with his consent, to carry out
judicial functions in another court, could not be seen as contrary to
Article 45 of the Constitution. Neither could it be considered
incompatible with the constitutional principle of separation of
powers. The Supreme Court underlined that any secondment under
section 77 § 1 of the Courts Organisation Act always required
the consent of a named judge and that such consent was the
constitutive element of a secondment decision. It noted that a
secondment under section 77 § 1 of the Courts Organisation Act
served to satisfy the human resources needs of the courts when judges
retired, resigned or died. It was aimed to ensure the continuity
and efficiency of examination of cases by the courts. It observed
that a decision on secondment signed by the Secretary
or Under-Secretary of State should include some information to
the effect that he acted on the explicit authorisation of the
Minister of Justice.
4. Judgment of the Constitutional Court of 15 January
2009 (no. K 45/07)
- On
29 September 2007 the National Council of the Judiciary (Krajowa
Rada Sądownictwa) challenged before the Constitutional Court
a number of provisions of the Courts Organisation Act, including
its section 77 § 1. It argued that it was against
the constitutional principles of separation of powers and the
independence of the judiciary to vest the Minister of Justice
with the competence to second a judge to a different court.
- In
its judgment of 15 January 2009 (case no. K 45/07),
the Constitutional Court dismissed most of the objections to
secondment. In particular, it held that secondment of a judge,
with his consent, to exercise judicial powers in another court did
not violate the constitutional principles relied on by the claimant.
In this respect it concurred with the position of the Supreme Court
expressed in the Resolution of 14 November 2007.
- The
Constitutional Court found that secondment of a judge by the Minister
of Justice or a president of the court constituted a temporary
exception to the rule that a judge was bound to the court to which he
was assigned and in which he exercised judicial powers. The
regulations on secondment were of an exceptional character in
view of the constitutional guarantees of judicial independence.
However, a judge was not removed from office by a virtue of a
decision on secondment and his status stemming from the nomination to
the office of judge did not change. The rules on secondment were
introduced with the aim of ensuring efficiency of court proceedings.
- On
the other hand, the Constitutional Court struck down section 77 § 1
(2) of the Courts Organisation Act in so far as it allowed for the
continuing exercise of judicial powers by a judge who had been
seconded to the Ministry of Justice to carry out administrative
duties. It also struck down as incompatible with the principle
of separation of powers sections 77 § 7 (a) and
(b) of the same Act, which provided for secondment of a judge
without his consent.
5. Nullity of civil proceedings
- Article
379 (4) of the Code of Civil Procedure provides, in so far
as relevant:
“The proceedings are invalid in law:
(...)
4) if the composition of a court was contrary to the
provisions of the law ...”
6. The practice of civil courts regarding nullity of
proceedings in connection with the presence of a seconded judge
on the bench
- In its decision of 14 July 2000 (no. II UKN 366/00)
the Supreme Court dealt with the validity of social security (civil)
proceedings in which a bench of a regional court, sitting as a
first-instance court, was composed of a seconded district court
judge, acting as its president, and two lay judges. It held that in
such a case the Minister’s decision authorising a seconded
district court judge to preside over cases heard by a regional court
referred to in section 24 § 2 of the 1985 Act on the
Organisation of Courts
had to be attached to the case file. If this was not the case then
the proceedings were invalid on account of the irregular composition
of the bench.
- In
its judgment of 14 April 2004 (no. III SK 26/04), the Supreme Court
examined a cassation appeal against a judgment of the Warsaw Regional
Court, the Court for the Protection of Competition and Consumers (Sąd
Ochrony Konkurencji i Konsumentów). The judgment of the
Regional Court, sitting as a first-instance court, was given by a
single-judge bench, consisting of a seconded district judge. The
Supreme Court noted that a judge could and should exercise
judicial powers in a court to which he was assigned, and that the
exceptions to this rule, allowing for adjudication in a given
court by a judge who had been assigned to a different court, were
strictly regulated by statute. One of the exceptions was provided
in section 46 § 1 of the Courts Organisation
Act. The principle established by this provision was that a district
judge seconded to a regional court could not preside over cases heard
by the regional court in single-judge formations unless he had been
specifically authorised to do so by the Minister of Justice. A
violation of this principle would lead to nullity of the proceedings.
In the absence of the relevant information from the case file,
the Supreme Court requested the President of the Warsaw Regional
Court to provide explanations. From those explanations it emerged
that the district court judge in question had been seconded to the
Regional Court by the President of the Warsaw court in accordance
with section 77 § 8 of the Courts Organisation
Act but had not been authorised by the Minister of Justice to preside
over cases heard by the regional court in a single-judge formation.
In consequence, the Supreme Court found that the proceedings before
the Regional Court had been invalid in law.
- In
the decision of 20 July 2007 (no. I CSK 201/07), the Supreme Court
held that the absence from the case file of a secondment decision in
respect of a regional judge seconded to the court of appeal under
section 77 § 8 of the Courts Organisation Act was
not sufficient to find that the composition of the bench was in
breach of the law and consequently lead to nullity of the
proceedings (Article 379 (4) of the Code of Civil Procedure;
hereinafter “the CCP”). It departed from the position
adopted earlier by the Supreme Court in its decision of 14 July 2000
(no. II UKN 366/00), which it considered too strict.
The Supreme Court found that the requirement to attach a
secondment decision to the case file was not expressly provided in
the Courts Organisation Act or the Code of Civil Procedure and that
it was sufficient, as it was the established practice in civil
courts, to mention in a decision that a bench included a seconded
judge.
- In
its decision of 15 January 2008 (no. III UK 97/07), the Supreme Court
in essence adopted the same stance as in the decision of 20 July 2007
referred to above.
- In
its judgment of 13 March 2008 (no. III CSK 337/07), the Supreme Court
found that a court of appeal was not required automatically
to examine a plea of nullity where a seconded district court
judge presided in the single bench of a regional court and the case
file did not contain specific authorisation to that effect under
section 46 § 1 of the Courts Organisation Act.
Such an obligation on a court of appeal would arise only in cases
where following a request of a party or upon a request by a relevant
authority there would be some evidence in the case file indicating
that the decision to second a district court judge to a regional
court did not include authorisation to preside in cases examined by
the latter court in single-judge formation. The Supreme Court noted
that a decision to second a district court judge to a regional court,
with possible authorisation to preside, was included only in the
personal file of a named judge. For those reasons it did not share
the finding of the Supreme Court in its earlier decision of
14 July 2000 (no. II UKN 366/00).
- The
Supreme Court confirmed this approach in its judgment of 16 May
2008 (no. I UK 337/07). It held that failure to comply with the rules
concerning the secondment of a judge or examination of a case
by a seconded judge will result in nullity of the
proceedings within the meaning of Article 379 (4) of the CCP.
Secondly, the Supreme Court considered that the issue of compliance
with the rules concerning secondment of judges should be
distinguished from the issue of presence of records indicating
the lawful composition of a bench. It held that it was not necessary
to attach a decision on secondment to the case file of every case
examined by the seconded judge. In this respect it disagreed with the
approach of the Supreme Court in its decision of 14 July 2000
(no. II UKN 366/00). Thirdly, the Supreme Court held
that a court at the second level of jurisdiction or the Supreme Court
were not required automatically to consider compliance with the rules
on secondment in every case where they examined a cassation appeal
against a judgment given by a seconded judge, unless doubts
as to such compliance arose. It noted that for pragmatic reasons any
relevant concerns should be raised by the parties or identified by a
court itself. To require the court acting of its own motion to do
more would be unreasonable and would involve it in numerous
activities not connected with the examination of a case.
- In
the judgment of 24 June 2009 (no. II PK 286/08), the Supreme Court
again confirmed the above approach. It found that the appellant who
had alleged that the composition of a bench of the second-instance
court was unlawful on account of the participation of a seconded
judge had not substantiated his allegations beyond reference to some
media reports. The Supreme Court took a similar position in its
judgment of 12 January 2011 (no. II PK 129/10).
COMPLAINTS
- The applicant complained under Article 6 § 1 of
the Convention that the proceedings had been unfair since the Court
of Appeal and the Supreme Court had failed to give adequate reasons
for the dismissal of her arguments concerning the unlawful
composition of the first-instance court. She further alleged,
citing the same provision, that the Supreme Court had not given
sufficient reasons for its decision refusing to hear her cassation
appeal, and indicated that there was a risk of arbitrariness in this
respect.
- The
applicant complained that the first-instance court was not
a “tribunal established by law”, as Judge P.G.-M.
had been allegedly assigned to the bench contrary to the domestic
law.
- The
applicant also alleged a breach of Articles 13 and 14 of the
Convention with regard to the Supreme Court’s decision refusing
to hear her cassation appeal.
THE LAW
A. Alleged violation of Article 6 § 1 of the
Convention (lack of sufficient reasons)
1. The Government’s submissions
- The
Government first made observations with regard to the relevant
domestic practice. They referred extensively to the resolution of the
Supreme Court of 14 November 2007 and the Constitutional Court’s
judgment of 15 January 2009. They further referred to the Supreme
Court decision of 15 January 2008 (no. III UK 97/07; see paragraph 26
above), and underlined that even before that decision there was
consistent domestic case-law that there was no legal obligation to
make available to the parties to the court proceedings a decision on
the secondment of a judge. In that decision the Supreme Court found
that the absence from the case file of the decision on secondment of
a judge had not amounted to nullity of the proceedings within the
meaning of Article 379 (4) of the CCP. The absence of the decision
from the case file did not prove that no such document existed, just
as the absence of a nomination act did not prove that a judge had not
been nominated in accordance with the law. Furthermore, the relevant
court was not required to examine whether the secondment decision
complied with the relevant regulations. The law did not require the
secondment decision to be attached to the case file, nonetheless such
a decision should be included in the personal file of a judge
and made available to the president of the court (see, for
comparison, the Supreme Court decision of 17 June 2003 in a criminal
case, no. V KK 138/02).
- They
stressed that information on the secondment of a judge was public and
well-known to the parties to a case in which that judge was presiding
or in which he was sitting on the bench. The fact of the presiding
judge’s secondment was indicated on the cover of each volume of
the case file, as well as in the composition of the court, which was
mentioned on every copy of a decision or judgment delivered by
that court; the same information was mentioned on the court’s
case list (wokanda). The fact of the secondment of a
judge was indicated by the abbreviation “del.”
(sec.[onded]) added before the name of a judge. Therefore each party
to a case was aware that a given judge had been seconded.
They also stated that, everyone was allowed to seek access to a
decision on secondment of a judge under the Act of 6
September 2001 on Access to Public Information, so it was open to the
applicant to request the decision in respect of Judge P.G.-M.
from the president of the relevant court.
- As regards the merits, the Government observed that
Article 6 § 1 of the Convention obliged
courts to give reasons for their judgments. However, the extent of
this obligation varied according to the nature of the decision and
the statutory provisions in force in a given country. In the Polish
civil procedure, the elements of the court’s reasoning were
specified in Article 328 § 2 of the CCP. This provision applied,
by virtue of Articles 391 and 39828 of the CCP, also
to the judgments given by the courts at the second level of
jurisdiction and by the Supreme Court. However, according to the
Supreme Court’s case-law, there was no requirement for the
reasoning of the second-instance court to include all the elements of
the first-instance court’s reasoning, as indicated in
Article 328 § 2 of the CCP, but only those which were
relevant to the appellate proceedings and essential for deciding on
the case in the second-instance court (see, for comparison the
Supreme Court decision of 13 March 2009, no. II CSK 537/08). The
Government submitted that in the present case all of the above
elements had been included in the reasoning of the judgments
delivered by the domestic courts in the applicant’s case. The
courts at both levels, as well as the Supreme Court (which decided
only on the admissibility of the applicant’s cassation appeal),
paid proper attention to each of the applicant’s requests
and complaints and explained in detail the reasons why they did or
did not accept them, citing the relevant provisions of the law.
Accordingly, the Government submitted that the reasoning contained in
the judgments given by the domestic courts in the applicant’s
case had been in full compliance with Article 6 § 1 of
the Convention.
- The
domestic courts gave adequate consideration to the applicant’s
arguments as to the allegedly unlawful composition of the Wrocław
Regional Court, which she had relied on in her appeal and the
cassation appeal. The applicant raised objections concerning the
composition of the Regional Court for the first time in her appeal
against the judgment of that court. The Wrocław Court of Appeal
dismissed the applicant’s appeal on 21 December 2007.
In its reasoning it considered in detail every argument raised by the
applicant, starting with the most far-reaching allegation of nullity
of the proceedings on account of the unlawful composition of the
bench of the Regional Court (breach of Article 46 of the Courts
Organisation Act). The Court of Appeal, having regard to the Supreme
Court resolution of 14 November 2007, found that secondment of a
judge by the Secretary or Under-Secretary of State had not resulted
in nullity of the proceedings. In the Government’s view, the
Court of Appeal had adequately addressed the applicant’s
objection concerning the authorisation of the seconded judge to
preside over her case.
- The
Supreme Court did not consider the issue of the allegedly unlawful
composition of the Regional Court, as it decided only on the
admissibility of the cassation appeal and not on the merits. Although
one of the admissibility criteria for a cassation appeal was the
invalidity of the proceedings at law (Article 3989 §
1 (3) of the CCP) – which occurs when the composition of the
court is contrary to the provisions of law – however, the issue
of the legality of seconding judges by the Secretary and
Under Secretary of State in the Ministry of Justice had already
been decided by the Supreme Court in the Resolution of 14 November
2007. Therefore, it was not necessary for the Supreme Court to
consider whether nullity of the proceedings on account of the
unlawful composition of the court had occurred.
2. The applicant’s submissions
- The applicant argued that neither the Wrocław
Court of Appeal nor the Supreme Court had examined whether Judge
P.G.-M. had been duly seconded and whether she had been authorised to
preside over hearings. None of those courts indicated what decision
served as the basis for the secondment of that judge and who signed
it, and when it was signed. Those courts also failed to determine
whether the secondment decision included authority to preside over
hearings. In order to reply to the applicant’s concerns the
courts should have analysed the documents on secondment and explained
whether the judge had been duly seconded and authorised to preside
over hearings.
- The applicant submitted that in her appeal she had
raised doubts about the composition of the Wrocław Regional
Court which should have been examined of its own motion by the
Wrocław Court of Appeal. However, the latter court in its
reasoning simply referred to the provisions concerning secondment of
judges and their interpretation in the Supreme Court’s
Resolution. That court did not indicate who had seconded Judge P.G.-M
or when it had been done. The Court of Appeal did not further
indicate what had been the basis for her authorisation to preside
over hearings.
- Furthermore,
whereas in her cassation appeal the applicant argued that the Court
of Appeal had failed to examine whether the first-instance bench had
been duly composed, the Supreme Court refused to examine her
cassation appeal and limited itself to stating that there were no
grounds justifying its examination. The applicant submitted that
Article 398¹³ of the CCP required the issue of the
composition of a bench to be examined by the Supreme Court. The
Supreme Court’s decision resulted in a breach of Article
328 § 2 in conjunction with Article 398²¹ of the CCP.
In those circumstances the domestic courts failed to provide reasons
for their decisions, and thus acted arbitrarily and in breach of
Articles 6 § 1 and 13 of the Convention.
- The applicant argued that the Government had failed to
prove that the composition of the first-instance court had been in
accordance with the law. They did not produce a copy of the decision
on secondment in respect of Judge P.G.-M. and her authorisation
to preside over hearings. Accordingly, the Government’s
assertion that Judge P.G.-M. had been duly seconded and authorised to
preside was groundless and the Court could not assess it.
- In
the applicant’s view, the transfer of the Minister of Justice’s
competences, provided in sections 46 § 1 and 77 § 1 of the
Courts Organisation Act to the Secretary of State on the basis of the
Council of Ministers Act, was not permitted. In addition, the
Minister’s circular no. 241/06/DO of 13 June 2006 did
not authorise the Secretary of State to exercise those
competences. The Supreme Court resolution of 14 November
2007 could not be considered a valid legal basis for the transfer of
those competences to the Secretary of State on the ground, among
others, that a decision on secondment concerned issues related to the
administration of justice sensu stricto. Furthermore,
twenty-six judges of the Supreme Court had expressed dissenting
opinions on the above resolution.
- The applicant submitted that the decision on
secondment of a judge was not accessible to a party to the
proceedings, as it was included in the judge’s personal file
and the Act of 6 September 2001 on Access to Public Information
(ustawa o dostępie do informacji publicznej) could not
have been relied on to obtain access to such a document. The decision
of the Secretary of State on secondment of Judge P.G.-M., to which
the Government referred in their submissions, had been flawed, since
those decisions could have been taken only by the Minister in person.
Accordingly, the proceedings in the applicant’s case were
invalid in law. The domestic courts should have examined the
decisions on the secondment of Judge P.G.-M. and her authority to
preside over hearings, since the applicant had had no opportunity to
consult them. Decisions on secondments concerned the
professional status of a named judge and were included in his
personal file. As such it was only the court which could have
examined them, and it should have done so, as irregularity in respect
of the composition of a bench would have resulted in nullity of the
proceedings.
- In
response to the Government’s decision to produce a copy of the
decision on the secondment of Judge P.G.-M., the applicant referred
to the Constitutional Court’s judgment of 15 January 2009 in
which that court found that the institution of secondment was a
temporary exception from the rule that a judge was bound to the court
to which he had been assigned and in which he exercised judicial
functions. However, it appeared from the decision on the secondment
of Judge P.G.-M. that she had been seconded for an unlimited period
of time, which was contrary to the assertion of the Constitutional
Court. Furthermore, the applicant claimed that the decision in the
case of Wieczorek (cited above) was not relevant to the
present case.
3. The Court’s assessment
- The
Court reiterates that, according to its established case-law
reflecting a principle linked to the proper administration of
justice, judgments of courts and tribunals should adequately state
the reasons on which they are based. A function of a
reasoned decision is to demonstrate to the parties that they have
been heard. Moreover, a reasoned decision affords a party the
opportunity to appeal against it, as well as to have the decision
reviewed by an appellate body. It is only by giving a reasoned
decision that there can be public scrutiny of the administration of
justice (see Hirvisaari v. Finland, no. 49684/99, § 30,
27 September 2001; Suominen v. Finland, no. 37801/97,
§ 36-37, 1 July 2003; and Kuznetsov and Others v. Russia,
no. 184/02, § 83, 11 January 2007).
- The extent to which this duty to give reasons applies
may vary according to the nature of the decision and must
be determined in the light of the circumstances of the case (see
Ruiz Torija v. Spain, 9 December 1994, § 29, Series A no.
303 A; Hiro Balani v. Spain, 9 December 1994, § 27,
Series A no. 303 B; Higgins and Others v. France, 19
February 1998, § 42, RJD 1998 I; and García Ruiz
v. Spain [GC], no. 30544/96, § 26, ECHR 1999 I).
Although Article 6 § 1 obliges courts to give reasons for their
decisions, it cannot be understood as requiring a detailed
answer to every argument (see Van de Hurk v. the Netherlands,
19 April 1994, § 61, Series A no. 288; and Pronina v.
Ukraine, no. 63566/00, § 23, 18 July 2006).
Thus, in dismissing an appeal, an appellate court may, in
principle, simply endorse the reasons for the lower court’s
decision (see, mutatis mutandis, Helle v. Finland,
19 December 1997, § 59-60, Reports of Judgments and
Decisions 1997 VIII). However, in special circumstances, an
appellate court of final instance may be required to give fuller
reasons for its judgment (see Yanakiev v. Bulgaria, no.
40476/98, § 72, 10 August 2006; Gheorghe v. Romania,
no. 19215/04, § 50, 15 March 2007; Wagner and J.M.W.L.
v. Luxembourg, no. 76240/01, §§ 96-97, 28 June
2007; and Velted-98 AD v. Bulgaria, no. 15239/02, §
48, 11 December 2008).
- In the present case the Court notes that in her appeal
against the Wrocław Regional Court’s judgment the
applicant claimed that the first instance proceedings were
invalid in law on the grounds of the irregular composition of that
court. She cited section 46 of the Courts Organisation Act and
specifically alleged that District Judge P.G.-M. had not been duly
seconded, in that she had not been authorised to act as the president
of a bench in the regional court. The Wrocław Court of Appeal
dismissed the plea of nullity of the proceedings by simply referring
to the Supreme Court’s Resolution of 14 November 2007, which
had found that the Minister of Justice’s competence to second
judges could be delegated to the Secretary or the Under-Secretary of
State.
- In
her subsequent cassation appeal to the Supreme Court the applicant
claimed that the Court of Appeal had failed to duly examine her plea
of nullity. She further pursued the issue of the unlawful composition
of the bench, alleging that the secondment decision had not been in
compliance with sections 46 § 1 and 77 § 1 of the Courts
Organisation Act. At this stage of the proceedings she raised for the
first time the argument that the Secretary or Under-Secretary of
State could second a judge only if expressly authorised by the
Minister of Justice. She also argued that there was no specific
information in the case file as regards the date of secondment, its
scope and the seconding authority, which made it impossible for her
to challenge the legality of the secondment decision. In its
decision of 14 November 2008 the Supreme Court refused to
hear the applicant’s cassation appeal. In the brief reasons
given for the decision the Supreme Court found that the conditions
for admissibility of the cassation appeal had not been made out. It
also held that there had been no nullity of the proceedings on the
grounds indicated in the cassation appeal (see paragraph 11 above).
- In
so far as the applicant asserts that the Minister of Justice could
not delegate the power to second judges to the Secretary or
Under-Secretary of State, the Court considers those arguments
untenable as they are contrary to the resolution of the full bench of
the Supreme Court adopted on 14 November 2007, which was
subsequently endorsed by the Constitutional Court in its judgment of
15 January 2009. The Court itself, in Wieczorek decision,
(cited above), considered the Supreme Court resolution and
found that the stand taken by the Supreme Court was fully compatible
with respect for judicial independence and for the separation of
judicial and executive powers. The Court affirms this approach in the
present case and finds that the position of the domestic courts
regarding the constitutional admissibility of the secondment of a
judge with his consent to another court by the Minister of Justice or
the Secretary or Under-Secretary of State is in compliance
with the requirements of Article 6 § 1 of the Convention.
- As
regards the nullity of civil proceedings in connection with the
presence of a seconded judge on the bench, the Court notes that the
domestic practice on this issue has evolved over time. In its early
decisions (no. II UKN 366/00 and no. III SK 26/04; see paragraphs
23-24 above) the Supreme Court took the view that in cases of this
kind a decision on secondment of a named judge should be
attached to the case file, which would allow the higher court to
examine any argument in relation to the validity of secondment.
In its subsequent practice, starting from the decision of 20 July
2007 (no. I CSK 201/07; see paragraphs 25-29 above), the Supreme
Court changed its approach and considered that the law did not
provide for such a requirement. It further noted that the higher
courts were not required to examine compliance with the rules on
secondment automatically in every case, but only in cases where
doubts as to compliance were raised by the parties or
discerned by the court itself. The Court recalls that it is primarily
for the national authorities, notably the courts, to resolve problems
of interpretation of domestic legislation (see Brualla Gómez
de la Torre v. Spain, 19 December 1997, § 31, RJD
1997 VIII; Waite and Kennedy v. Germany [GC], no.
26083/94, § 54, ECHR 1999 I; and Nejdet Şahin and
Perihan Şahin v. Turkey [GC], no. 13279/05, § 49,
20 October 2011). It does not find anything objectionable in the
evolution of the domestic practice described above towards what
appears to be a more restrictive approach. It notes that
in accordance with recent practice there was no legal obligation
to attach a decision on secondment of a judge to the case file
of a case in which such a judge sat. On the other hand, the Court
observes that the domestic courts were under an obligation to review
compliance with the rules on secondment of judges if a party to
the proceedings raised substantiated allegations in this respect.
- The Court has analysed the reasoning of the Court of
Appeal and of the Supreme Court. It notes that the Court of Appeal
did not respond to the applicant’s argument that the seconded
Judge P.G.-M. had not been authorised by the Minister to preside over
hearings. However, this omission of the Court of Appeal was rectified
by the Supreme Court which in its decision refusing leave to appeal
found that there was no nullity of the proceedings on the grounds
indicated in the applicant’s cassation appeal.
- In
so far as the applicant maintains that the Supreme Court’s
decision was inadequately reasoned, the Court recalls that in
the case of Wnuk v. Poland
((dec.), no. 38308/05, 1 September 2009) it dealt with a
similar complaint of lack of sufficient
reasoning for a Supreme Court decision on application for leave to
appeal. In that case the Court, having regard to its relevant
case-law, found that in this context very limited reasoning could
satisfy the requirements of Article 6 of the Convention and
declared the complaint under Article 6 § 1
inadmissible (see paragraph 46 above). In the instant case, faced
with a bare assertion of irregularity, there were no special
circumstances which required the Supreme Court to give a fuller
answer (compare and contrast, the cases cited in paragraph 46 in
fine). The applicant did not
raise in her cassation appeal any substantiated doubts with regard to
the validity of the secondment of Judge P.G.-M. In consequence, the
summary reasoning of the Supreme Court in respect of the
admissibility of her cassation appeal does not give rise to any
appearance of a breach of Article 6 § 1 of the Convention.
- It
follows that this part of the application is manifestly ill-founded
and must be rejected in accordance with Article 35 §§ 3 (a)
and 4 of the Convention.
B. Alleged violation of Article 6 § 1 of the
Convention (“tribunal established by law”)
- The
applicant complained that the first-instance court had not been
a “tribunal established by law”, as Judge P.G.-M.
had been allegedly assigned to the bench contrary to the domestic
law.
- The Government contested that argument. They referred
to the Wieczorek decision (cited above) in which the Court
found that a court composed of a duly seconded judge was a “tribunal
established by law” and noted that the applicant did not submit
any comments on this most relevant decision of the Court with regard
to the issue of secondment of judges. Judge P.G.-M., who was
adjudicating the applicant’s case in the first instance
court, was a district judge seconded by the Minister of Justice on 28
March 2007 to the Wrocław Regional Court, with the right to
preside in cases heard by that court in a bench composed of one
judge, or of one judge and two lay judges. The secondment decision
was signed by the Secretary of State in the Ministry of
Justice and in the view of the Supreme Court
resolution of 14 November 2007 such a secondment was in accordance
with the law.
- In
the light of all the material in its possession and having regard to
its findings in respect of the first complaint under Article 6 §
1 of the Convention, the Court does not find established that the
Wrocław Regional Court was not a “tribunal established by
law” as required by this provision.
- It
follows that this complaint is manifestly ill-founded and must be
rejected in accordance with Article 35 §§ 3 (a) and 4 of
the Convention.
C. Other alleged violations of the Convention
- Lastly,
the applicant alleged a breach of Articles 13 and 14 of the
Convention with regard to the Supreme Court’s decision refusing
to hear her cassation appeal.
- The
Court notes that the applicant contested the same decision under
Article 6 § 1 of the Convention. It reiterates that the role of
Article 6 § 1 in relation to Article 13 is that of a lex
specialis, the requirements of Article 13 being absorbed by more
stringent requirements of Article 6 § 1 (see Brualla Gómez
de la Torre, cited above, § 41). Furthermore, the Court
finds that the complaint under Article 14 does not raise any issue in
the case.
- It
follows that this part of the application is manifestly ill-founded
and must be rejected in accordance with Article 35 §§ 3 (a)
and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Lawrence Early David Thór Björgvinsson
Registrar President
