IWANCZUK v. POLAND
Inadmissible
Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä
The applicant, Mr Krzysztof Iwańczuk, is a Polish national who was born in 1962 and lives in Konstancin-Jeziorna. He was represented before the Court by Mr J. Brydak, a lawyer practising in Warsaw. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs. The facts of the case, as submitted by the parties, may be summarised as follows. On 8 April 1993 the prosecution filed a bill of indictment against the applicant with the Wrocław Regional Court. He was charged with several financial offences. The case was heard by the panel composed of Judge A.W. and two lay judges. A hearing scheduled for 22 December 1998 was cancelled due to the illness of one of the lay judges. On 11 August 1999 the lay judge died. In addition, Judge A.W. was due to leave the Wrocław Regional Court to take up a post at the Supreme Administrative Court on 17 January 2000. As a result the applicant’s case had to be heard de novo by a newly composed panel. On 13 September 1999 the Minister of Justice seconded Judge J.M. from the Oleśnica District Court to serve as a judge of the Wrocław Regional Court from 1 October 1999 to 31 March 2000. On 13 September 1999 Judge J.M. was put on a list of judges of the 3rd Criminal Division of the Wrocław Regional Court. On the same day the President of the 3rd Criminal Division assigned Judge J.M. to the applicant’s case under Article 351 § 1 of the Code of Criminal Procedure. He noted that the judge who had been previously assigned to the case was due to take up a different judicial post. Furthermore, it was necessary to divide work evenly between judges in the division. On 18 October 1999 Judge J.M. scheduled the first hearing in the applicant’s case for 17 November 1999. It appears that subsequently Judge J.M. was appointed a regional court judge. On 5 May 2003 the Wrocław Regional Court, composed of Judge J.M. and two lay judges, convicted the applicant of fraud. It sentenced him to five years’ imprisonment and a fine. The applicant appealed. On 1 April 2004 the Wrocław Court of Appeal upheld the first-instance judgment. The applicant lodged a cassation appeal, arguing that the panel of the Wrocław Regional Court had been composed in breach of Article 351 § 1 of the Code of Criminal Procedure. He submitted that the President of the 3rd Criminal Division should have assigned his case to the next judge on the list of judges and not to Judge J.M. Since that was not the case, the composition of the court was decided in an administrative manner. The applicant further relied on Article 6 § 1 of the Convention, arguing the lack of objective impartiality of the Regional Court. On 10 December 2004 the Supreme Court requested the President of the 3rd Criminal Section of the Wrocław Regional Court to provide a list of judges, referred to in Article 351 § 1 of the Code of Criminal Procedure, which had been valid on 13 September 1999. On 17 December 2004 the requested list of judges together with an explanation as to the composition of the panel was received by the Supreme Court. The list of judges adjudicating in the 3rd Criminal Division of the Wrocław Regional Court valid on 13 September 1999 included Judge J.M. The list contained eleven judges listed in numerical order. Judge A.W. was fifth on the list and Judge J.M. was eleventh on the list. He was indicated as having been seconded to the Regional Court by a decision of the Minister of Justice of 13 September 1999. It was further stated that on 13 September 1999 the applicant’s case was assigned to Judge J.M. The reasons for this decision were even distribution of work between judges in the division and the necessity to provide Judge J.M., a newly-seconded judge, with cases to examine. The Supreme Court was further informed that A.W., the judge previously assigned to the case, had been due to be transferred to the Supreme Administrative Court on 17 January 2000. On 29 April 2005 the Supreme Court held a hearing. It dismissed the applicant’s cassation appeal as manifestly ill-founded and pronounced the most relevant reasons for its decision. The Supreme Court further informed the parties that due to the manifestly ill-founded character of the cassation appeal, it was not required to provide written grounds for its decision (Article 535 § 2 of the Code of Criminal Procedure). Article 351 § 1 of the Code of Criminal Procedure (,,CCP”) stated at the material time as follows: “A judge (...) is assigned [to a case] in the order in which the case was filed and by reference to a list of judges of a given court or division which is accessible to the parties. A departure from this rule is permissible only by way of omitting a judge on the ground of his/her illness or on other important grounds and [that circumstance] should be specified in a decision on holding a hearing” Article 351 § 2 of the CCP provides that in cases concerning the most serious charges the composition of a panel is decided – on request of a prosecutor or a defence counsel – by drawing lots. In a decision of 23 November 2004 (case no. V KK 195/04) the Supreme Court held that the notion of “other important grounds” within the meaning of this provision comprised “a heavy workload of a judge which made it impossible for him/her to decide on a case before the expiry of a limitation period”. The Supreme Court noted that the rule established in Article 351 § 1 of the CCP was not absolute and could be subject to limitations which took account of practical necessities. In a resolution of 17 November 2005 (case no. I KZP 43/05) the Supreme Court found that Article 351 § 1 of the CCP would be breached if a different judge than the judge next on the list of judges was assigned to hear a case and if no important ground had been invoked to justify the departure from the rule. The Ordinance of the Minister of Justice of 12 August 1998 on particular rules concerning assignment and drawing of judicial panels came into force on 1 September 1998. Paragraph 2 (1) of the Ordinance required that in each division there had to be a list of judges in alphabetical order. In addition, the list should include annotations about any circumstances constituting grounds for departure from the rules of assignment of judges specified in Article 351 § 1 of the CCP.