PROCEDURE

The case originated in an application (no. 32602/08) 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 Henryk Stokłosa (“the applicant”), on 2 July 2008.

The applicant was represented by Mr J. Majewski, Mr A. Reichelt and Mr M. Gutowski, lawyers practising in Warsaw and Poznań respectively. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs.

The applicant alleged that the assessor who had remanded him in custody had lacked independence, contrary to Article 5 § 3 of the Convention.

On 7 September 2009 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.

On 30 November 2010 the Court (Fourth Section), having regard to the declaration submitted by the Government and the applicant’s reply to that declaration, decided to strike out the application of its list of cases in so far as it related to the complaints under Article 5 § 4 of the Convention. It also decided to adjourn the examination of the applicant’s complaint under Article 5 § 3 of the Convention.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

The applicant was born in 1949 and lives in Śmiłowo. He was a member of the Senate (the upper chamber of the Parliament) between 1989 and 2005 and a prosperous businessman.

On an unspecified date the prosecution authorities instituted criminal proceedings against the applicant. It appears that he left Poland in December 2006. On 30 January 2007 the Warsaw-Praga Północ District Court ordered that the applicant be remanded in custody. That decision was upheld on appeal.

On 23 July 2007 the Warsaw-Praga Regional Court issued a European Arrest Warrant for the applicant. On 12 November 2007 he was arrested in Germany on the basis of that warrant. On 19 December 2007 the applicant was extradited to Poland.

Subsequently the Warsaw-Praga Regional Prosecutor charged the applicant with, inter alia, numerous counts of bribery of high-ranking officials of the Ministry of Finance and bribery of a judge of the administrative court. The applicant was represented by three defence counsel.

On 21 December 2007, on an application from the Warsaw-Praga Regional Prosecutor, the assessor R.Z. (junior judge) of the Warsaw‑Praga Północ District Court remanded the applicant in custody until 19 March 2008.

Two of the applicant’s counsel (Mr J. Majewski and Mr M. Boruc) lodged appeals against the detention order on 28 December 2007. Counsel J. Majewski argued, invoking Article 5 § 3 of the Convention, that the detention order had been given by an assessor who could not be considered “a judge” or “other officer authorised by law to exercise judicial power” because he lacked independence from the executive. Relying on Article 439 § 1 (1) of the Code of Criminal Procedure (“CCP”) he submitted that the detention order had been given by a “non-authorised person” (osoba nieuprawniona). In this respect he referred to the Constitutional Court’s judgment of 24 October 2007.

On 11 January 2008 the applicant’s third counsel (Mr J. Naumann) filed an appeal against the detention order.

On 12 February 2008 the Warsaw-Praga Regional Court, sitting as a bench of three professional judges, dismissed the appeals against the detention order of 21 December 2007. It held that the assessor could not be considered as “a non-authorised person to give a decision” within the meaning of Article 439 § 1 (1) of the CCP. The Constitutional Court had struck down the provisions allowing the Minister of Justice to delegate judicial powers to assessors; however the relevant decisions given by assessors had not been automatically negated. The court observed that following Poland’s accession to the European Union domestic law was undergoing a continuous process of adjustment to the requirements of European law. However, the transformation of domestic law should not lead to chaos in the legal order and for that reason the Constitutional Court had allowed 18 months for the necessary legislative changes to be implemented. The court observed that at the relevant time the applicant could only challenge an alleged lack of impartiality on the part of the assessor under Article 41 § 1 of the CCP.