Rezoluția CM/ResDH(2013)66 Richert împotriva Poloniei Executarea hotărârii Curții Europene a Drepturilor Omului (întrebarea nr. 54809/07, Hotărârea din 25/10/2011, definitivă la 25/010/2012) (adoptată de Comitetul de Miniștri la 30 aprilie 2013, cu ocazia celei de-a 1169-a ședințe a delegaților miniștrilor) Comitetul miniștrilor, în temeiul articolului 46 alineatul (2) din Convenția pentru apărarea drepturilor omului și a libertăților fundamentale, care prevede ca Comitetul să supravegheze executarea hotărârilor definitive ale Curții Europene a Drepturilor Omului (denumite în continuare "convenția" și "Curtea"), Având în vedere hotărârea definitivă, care a fost transmisă de Curte Comitetului în cauza de mai sus și încălcările constatate reamintind obligația statului pârât, în temeiul articolului 46 alineatul (1) (1) din Convenție, să se conformeze hotărârilor definitive în litigiile la care este parte și că această obligație implică, pe lângă plata satisfacției echitabile acordate de Curte, adoptarea de către autoritățile din statul membru în cauză, dacă este necesar de măsuri individuale pentru a pune capăt încălcărilor constatate și pentru a elimina consecințele acestora, în măsura posibilului de către Restitutio in integrum ; și măsuri generale care să permită prevenirea unor încălcări similare ; Am invitat guvernul de la Tribunalul de Primă Instanță să informeze Comitetul cu privire la măsurile luate pentru a se conforma obligațiilor care decurg din examinarea bilanțului de acțiune furnizat de guvern care indică măsurile adoptate în vederea executării hotărârilor (a se vedea documentul DH-DD(2013) 293E Se asigură că toate măsurile prevăzute la art. 46 alineatul (1) au fost adoptate, DECURSĂ că acesta și-a îndeplinit funcțiile în temeiul articolului 46 alineatul (2) din Convenție în această cauză și DECIDE d.n.n. la examen. action report [1] Information about the Measures to comply with the judgment in the case of Rchert against Poland (în limba engleză) Case description Caseta referitoare la o încălcare a articolului 6 alineatul (1) din Convenție privind account of thefact that the applicant was convicted by a tribunal which was not However, un anumit legal requirements had to be met in order to safeguard Judicial independence, to prevant the compozition of benches being manipulated in any way and to guarantee a fair hearing. Presidenți de scurts were employed to a second a judge, provided that he or she agreed thereto and that the board of the chogey of judges of that scurt gave its assent. Moreover, the aplicabil provision of the Law on the Structure of Courts limit the period for which such an atribuiment can be made to thirty days per year. Unele dificulties and discrepancies in judicial Practice arose in connection with the interpretation of the term 2002. It considered itcessary to adoption a resolution clarifying anumite aspecte ale procedurii juridice al doilea paragrafs. The Court observad that the President of the Regional Court al doilead Judge L.M., by his letter of 23 August 2004, to sit on the bench of the Regional Court suplimentared to examinare the applicant However, only three hearing dates were specialified in that letter: 26 October, and 16 and 23 November 2004. Further, it was common ground between the partis that Judge L.M. ha not objected to her design to the applicant A year later, in October 2005, doubts arse as to whether the compozition of the first-instance scurt had compliment with the provision of the domestic law. These doubts were expresed 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. In his reply, the President stated that the judge had been second from 26 October 2004 until a first-instance judgment was to be given in the caseta. The Court observad that the President as letter of 26 October 2005 was meant to authorise the al doileament with retrospective effect. However, no argument were 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 second request was one of the lawful procedural methods for asigning judge to other benches. The Court noted that the secondence between the President of the Criminal Division and the President of the Regional Court showed that they were uncertain about whether in the applicant Accordingly, since the rezultat of the compozition of the court would been decisive for the outcome of the case, the Supreme Court should should addressed the submission in its judgment. However, in the absence of an authoritative determination by the Polish Judicial authority that the retrospective authorisation of a judge Cumulatively, these Circumstations did not permit the Court to conclusion that the luation Regional Court, which heard the applicant The Court considered that in the particularumstances of the present case the finding of a încălcarea constituted in itself sucient just satisfaction for any moraly damage which may may been sustained by the aplicant (§ 66 of the Court Opening of criminal proceedings after the judgment of the European Court declaration a incalcation of the convention is given. In these circumstances, no other individual measure appears necessary. General measures Amendments of law In order to clarify the provisions governing al doileaments of judges and to avoid discrepancies in the interpretation of those provision on 28 March 2012 the following amendment of the Law on the Structure of Courts was pased. According to the amendad article 77 § 8, the President of the Court of Appeal can second a District, Regional or Appeal Court Second of the judge for an uninterupted period and for no longer than șase months per year guarantees that such doubts as occurred in the Richert v. Poland case will not ocur in the viitor. Case law of the national scurts According to the Court On 24 May 2012, the Supreme Court adoptă o soluție privind Întrebarea de la al doilea paragraf din Legea 27 Judge to another scurt.Acording to this resolution the second of the judge on the bazis of the article 77§ 8 and 9 of the Act of 27 Judgment 2001 main the Law on the Structure of Courts to perform the duties at at another scurt does not authorise that judge to pronounce a judgment issued from his participation after elapsed time of the al doileament. Moreover, concording to the judgment of the Supreme Court of 11 July 2012, all the juridictional measures of a judge second to another scurt, made in this Court, must fall within the scop of the secondment, indicated in the order of the president of the curte. Measures made by such judge before or after the period of second are without a legal bazis and are the measures of the judge incompetent, made beyond his content and the area of juridiction. The Supreme Court confirmă că judge second to the particular hearing but not to a day of the Judgment is not authorised to issue a judgment and the judgment which was is is issued by him/her is invalid. Publication of the Court The Court as judgment was translated into Polish and publicished on the site of the Ministry of Justice (http://ms.gov.pl/ In addition, in 2011, a special publicity has been prepared which contins the analisis of the Court Standardy ochrony praw człowieka w prawie Europejskiej Konwencji Praw Człowieka . The publication also contains of the standards raported to Article 6 § 1 of the Convention. It has been diseminated free of încărcare among all judges and prosecutors. In these circumstances, no further general measure appears necessary. Concluzii of the respondent State State The government considers that no individual measures are necessary in the present case and that the general Measures adopted, notably the legislative changes, will be sucient to conclusion that Poland has commised with its obligations under Articol 46, paragraph 1 of the convention in respect to the breach of Article 6, paragraph 1 of the convention. [1] Informații submitted by the Polish authorities on 20 February 2013.
Résolution CM/ResDH(2013)66
Richert contre Pologne
Exécution de l’arrêt de la Cour européenne des droits de l’homme
(Requête n
o
54809/07, arrêt du 25/10/2011, définitif le 25/01/2012)
(adoptée par le Comité de Ministres le 30 avril 2013,
lors de la 1169e réunion des Délégués des Ministres)
Le Comité des Ministres, en vertu de l’article 46, paragraphe 2, de la Convention de sauvegarde des droits de l’homme et des libertés fondamentales, qui prévoit que le Comité surveille l’exécution des arrêts définitifs de la Cour européenne des droits de l’homme (ci-après nommées «
la Convention
» et «
la Cour
»),
Vu le arrêt définitif, qui a été transmis par la Cour au Comité dans l’affaire ci-dessus et les violations constatées
;
Rappelant l’obligation de l’Etat défendeur, en vertu de l’article 46, paragraphe
1, de la Convention, de se conformer aux arrêts définitifs dans les litiges auxquels il est partie et que cette obligation implique, outre le paiement de la satisfaction équitable octroyée par la Cour, l’adoption par les autorités de l’Etat défendeur, si nécessaire
:
-
de mesures individuelles pour mettre fin aux violations constatées et en effacer les conséquences, dans la mesure du possible par
restitutio in integrum
; et
-
de mesures générales permettant de prévenir des violations semblables ;
Ayant invité le gouvernement de l’Etat défendeur à informer le Comité des mesures prises pour se conformer à l’obligation susmentionnée
;
Ayant examiné le bilan d’action fourni par le gouvernement indiquant les mesures adoptées afin d’exécuter les arrêts (voir document
)
;
S’étant assuré que toutes les mesures requises par l’article 46, paragraphe 1, ont été adoptées,
DECLARE qu’il a rempli ses fonctions en vertu de l’article 46, paragraphe 2, de la Convention dans cette affaire et
DECIDE d’en clore l’examen.
A
ction report
[1]
Information about the measures to comply with the judgment in the case of
Richert against Poland
(anglais seulement)
Case description
The case concerns 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”.
The Court noted that under the provisions of the Law on the Structure of Courts it was possible to assign judges to sit on benches in courts other than their own. However, certain legal requirements had 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 were empowered to second a judge, provided that he or she agreed thereto and that the board of the assembly of judges of that court gave its assent. Moreover, the applicable provision of the Law on the Structure of Courts limited 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.
The Court observed 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.
The Court observed that the President’s letter of 26 October 2005 was meant to authorise the secondment with retrospective effect. However, no arguments were 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 noted that the correspondence between the President of the Criminal Division and the President of the Regional Court showed that they were uncertain about whether in the applicant’s case the secondment of Judge L.M. had respected the applicable procedural requirements.
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.
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 did 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 did 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.
Individual measures
The Court considered that in the particular circumstances of the present case the finding of a violation constituted in itself sufficient just satisfaction for any non-pecuniary damage which may have been sustained by the applicant (§ 66 of the Court’s judgment).
Pursuant to article 540 § 3 of the Code of Criminal Procedure, there exists the possibility of re
‑
opening of criminal proceedings after the judgment of the European Court declaring a violation of the Convention is given.
In these circumstances, no other individual measure appears necessary.
General measures
Amendments of law
In order to clarify the provisions governing secondments of judges and to avoid discrepancies in the interpretation of those provisions on 28 March 2012 the following amendment of the Law on the Structure of Courts was passed.
According to the amended article 77 § 8, the President of the Court of Appeal can second a District, Regional or Appeal Court’s judge to the court of the same or lower level located at the Court’s of Appeal area after the consent of that judge and the board of the assembly of judges of the Regional Court which has jurisdiction over the court to which the secondment is planned for uninterrupted period, not longer than six months per year has been given.
Secondment of the judge for an uninterrupted period and for no longer than six months per year guarantees that such doubts as occurred in the Richert v. Poland case will not occur in the future.
Case law of the national courts
According to the Court’s judgment, the Supreme Court specified the question of determination of the duration of the secondment.
On 24 May 2012, the Supreme Court adopted a resolution concerning the
question of the secondment of a judge to another court. According to this resolution the secondment of the judge on the basis of the article 77 § 8 and 9 of the Act of 27 July 2001 – the Law on the Structure of Courts to perform the duties at another court does not authorise that judge to pronounce a judgment issued from his participation after elapsed time of the secondment.
Moreover, according to the judgment of the Supreme Court of 11 July 2012, all the jurisdictional measures of a judge seconded to another court, made in this court, must fall within the scope of the secondment, indicated in the order of the president of the court. Measures made by such judge before or after the period of secondment are without a legal basis and are the measures of the judge incompetent, made beyond his competence and the area of jurisdiction.
This line of case law was confirmed by the Supreme Court on 6 September 2012. The Supreme Court confirmed that the judge seconded to the particular hearing but not to a day of issue of the judgment is not authorised to issue a judgment and the judgment which was issued by him/her is invalid.
Publication of the Court’s judgment
The Court’s judgment was translated into Polish and published on the Internet site of the Ministry of Justice (
http://ms.gov.pl/
).
In addition, in 2011, a special publication has been prepared which contains the analysis of the Court’s case law in leading cases concerning Poland – “Human rights standards under the European Convention on Human Rights” (
Standardy ochrony praw człowieka w prawie Europejskiej Konwencji Praw Człowieka
). The publication also contains the analysis of the standards related to Article 6 § 1 of the Convention. It has been disseminated free of charge among all judges and prosecutors.
In these circumstances, no further general measure appears necessary.
Conclusions of the respondent State
The government considers that no individual measures are necessary in the present case and that the general measures adopted, notably the legislative changes, will be sufficient to conclude that Poland has complied with its obligations under Article 46, paragraph 1 of the Convention in respect to the breach of Article 6, paragraph 1 of the Convention.
[1]
Information submitted by the Polish authorities on 20 February 2013.